Cascade Tree Farms, Inc. v. Clackamas County

442 P.2d 606 (1968)

CASCADE TREE FARMS, INC., an Oregon Corporation, Appellant, v. CLACKAMAS COUNTY, a Municipal Corporation and Political Subdivision of the State of Oregon, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 10, 1968.

Decided June 26, 1968.

*607 George M. Joseph, Portland, argued the cause for appellant. On the brief were Jack, Goodwin & Anicker, Oregon City.

Carl R. Neil, Portland, argued the cause for respondent. With him on the brief were Krause, Lindsay & Nahstoll, Portland, and Roger N. Rook, Dist. Atty., and Richard Crist, Deputy Dist. Atty., Oregon City.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, HOLMAN and RODMAN, JJ.

O'CONNELL, Justice.

This is a suit to recover 160 acres of property acquired by Clackamas County in a tax foreclosure proceeding. The circuit court sustained defendant's demurrer to plaintiff's complaint and plaintiff appeals.

On December 14, 1939 defendant commenced a proceeding to foreclose delinquent tax liens on property located in Clackamas County including a parcel owned by plaintiff's predecessor. Notice of the proceedings was published on December 21, 1939 correctly naming the owner of the property, Camillia D. Abernathy. Miss Abernathy made no appearance and a decree of foreclosure was entered. Thereafter the property was sold to defendant county and instruments conveying the property to the county were properly recorded.

Plaintiff contends that the notice of the tax foreclosure proceedings was defective in that it described the entire 160-acre tract owned by Camillia D. Abernathy when in fact a 40-acre portion of the property was not subject to foreclosure.[1] In no way could the notice describing the entire tract have misled Miss Abernathy for it advised her that all of her property was in jeopardy. The published summons correctly described the 160-acre tract and named her as the owner of it. Moreover, her election to pay part of the taxes and thus avoid foreclosure on a portion of her property indicates that she was aware of the consequences that would follow if she failed to pay the balance of the taxes.

Plaintiff also asserts that the summons failed to meet the requirement of due process because (1) it failed to contain a specific direction to appear and (2) it was published in a paper of limited circulation. A summons giving notice of the foreclosure proceedings is sufficient to apprise the owner of property of the *608 importance of making an appearance. We take judicial notice of the fact that the publication of the summons in four successive publications of the Molalla Pioneer, a weekly newspaper of general circulation in Clackamas County, provided the property owner with adequate notice of the foreclosure proceedings.

Since foreclosure proceedings were without defect and the decree rendered was valid, it is not necessary to consider the applicability of the statute of limitations prescribed in ORS 312.230.

The decree of the trial court is affirmed.

[1] The taxpayer paid the taxes on this 40-acre portion of the property and an order of dismissal as to this parcel was entered on June 3, 1940.