BUCHANAN v. TENNANT. (Supreme Court of Oregon. Dec. 14, 1909.)

1. TAXATION (§ 110*)-TAX SALE-PURCHASE BY COUNTY-RIGHT ACQUIRED.

Where a county bids in land at a tax sale under B. & C. Comp. § 3122, it acquires "all the estate or interest therein of the owners" subject to redemption within the time provided by law at the time of the sale, and, until the absolute title is divested and passes to the county, the land is assessable to the owner.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 143; Dec. Dig. § 110.*]

2. TAXATION (§ 733*)-TAX SALE-PURCHASE
BY COUNTY-SUBSEQUENT TAXES.
Where land is bid in by a county at a tax
sale, the purchaser at a subsequent sheriff's sale
for taxes obtains only a right to redeem from
the county, and the county does not thereby lose
its interest acquired by the previous sale.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1469; Dec. Dig. § 733.*]

3. TAXATION (§ 699*)-TAX SALE-PURCHASE BY COUNTY-REDEMPTION.

Where land was bid in by a county at a tax sale, and the time for redemption had expired, and title had vested in the county, the owner's attorney by paying the aggregate amount of delinquent taxes to the county clerk and taking his receipt, and receiving from him the several certificates of sale which had been issued to the county by the sheriff, did not effect a recovery of title or redemption of the property, or remove from the record any apparent cloud on the title caused by the record of the sales.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. § 699.*]

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Action by J. A. Buchanan against Phoebe Tennant. From a judgment for defendant, plaintiff appeals. Affirmed.

further and separate defenses are averred, in substance as follows: (1) That, before plaintiff had taken any proceedings to set aside her duly authorized agent, rescinded the conand cancel the tax liens, defendant, through tract on account of plaintiff's negligence and failure to comply with the terms thereof, and directed him to proceed no further; that thereupon defendant's agent proceeded to clear the title, and contracted with J. F. Baker and G. R. Childs to purchase of them whatever interest they had under a tax sale to them of the defendant's land, and that afterwards she received their deeds of conveyance, and placed them on record; that, notwithstanding defendant's notice of rescission, plaintiff on or about October 9, 1906, began a suit in Douglas county, in the name of defendant and against Baker and Childs, to quiet title to the property in question; that at the time plaintiff knew that defendant had purchased the title of said parties, and would, in time, receive conveyances from them; and that at the time said suit was filed there were, in fact, no liens against defendant's property, on account of tax sales or otherwise. (2) Rescission, based on misrepresentation by plaintiff to defendant, as to a material fact, which induced her to enter into the contract. (3) That the contract is champertous, and therefore illegal and void.

The reply admits that plaintiff began a suit in defendant's name on October 8, 1906,

against Baker and Childs to quiet defendant's

title, but avers that Douglas county, because of several tax sales made to it, prior to the sale to Baker and Childs, was also made a defendant therein. Otherwise the reply put at issue all of the new matter of the answer. Upon a trial being had, the court found with the defendant, as to a question of fact, that before any suit was commenced by plaintiff, in pursuance with the contract, defendant, through her agent, notified plaintiff not to commence the suit; that the matter was in

This is a suit for the specific performance of a written contract between plaintiff, who is an attorney at law, residing at Roseburg, in Douglas county, and the defendant, who resides in the state of Colorado. It recites that defendant is the owner of certain lands in that county, which had been sold for taxes, and that a deed had been issued and record-process of settlement. As to the law, it was ed and other conveyances made. By its terms defendant employed plaintiff to recover said lands by suit or otherwise, and as a consideration therefor agreed to convey to plaintiff an undivided one-half interest in the lands, provided he recovered the same, by suit or otherwise, and removed the cloud cast on the title by such sales, but, if he failed to regain the land and remove the cloud, then plaintiff was to receive nothing for his work or ex-performed on his part." A decree was enterpense. Defendant agreed to advance $5 for filing the complaint, and plaintiff accepted the employment and agreed to prosecute the case to final determination. Plaintiff alleges that he has fully performed all his part of the contract.

held that, after making the contract with plaintiff, it was within the power of defendant to settle the controversy in relation to which plaintiff had been retained as attorney, and "that, in the event of such settlement made in good faith without the intent of defrauding plaintiff, plaintiff is not entitled to a decree of specific performance as for a contract the terms of which have been

ed, dismissing the complaint, and granting defendant costs and disbursements, from which plaintiff appealed.

J. A. Buchanan, for appellant. A. N. Orcutt (Fullerton & Orcutt, on the brief), for respondent.

The answer admits that defendant is the owner of the lands, and that she made the contract with plaintiff, but denies all other material averments of the complaint. Three

SLATER, J. (after stating the facts as above). Plaintiff and his counsel have earn

estly and ably urged upon us that the trial | demption within the time provided by law at court erred, both upon the facts and the law. But, assuming that the law is as he contends, and that he is entitled to the remedy invoked when he has shown by competent testimony that he has fully performed the terms of the contract, yet we are compelled by the record to find that he has failed to make his case. He testifies that, when the contract was made, the land had been sold for delinquent taxes, and was bid in by the county five different times prior to the sale to Baker and Childs. These sales occurred as follows: January 2, 1895, for the taxes of 1893; December 17, 1895, for the taxes of 1894; February 17, 1900, for the taxes of 1898; January 26, 1901, for the taxes of 1899; and February 24, 1902, for the taxes of 1900. The sale to Baker and Childs took place on January 5, 1903, for the taxes of 1901. It was the record of these sales that plaintiff says he was to cause to be canceled by suit or otherwise, and he contends that it was not until after his suit had been brought that the defendant's agent unwarrantedly interfered, made the agreement with Baker and Childs, and notified him not to take any further proceedings, because of the claim that the matter had been settled. He also contends that defendant's agreement with those two persons did not remove the entire cause of suit, but left the cause against the county unsettled and still pending, and further testifies that afterwards, on October 26, 1906, he, as attorney for the defendant, went to the county clerk's office, and paid to that officer the sum of $49.29 in full for the delinquent taxes due Douglas county for the five years for which the land had been sold, and he exhibited a written receipt of the county clerk to that effect. At the time of such payment that officer also delivered to plaintiff the sheriff's certificates of sale, which are in evidence, but they are unaccompanied by any written transfer or release, by indorsement or otherwise, of the county's interest in the land by virtue of these sales. After making this payment, plaintiff, considering that the defendant's record title to the land had been freed of all adverse claims, dismissed the suit, as he considered it of no further utility.

the time of the sale, the same as if it had been purchased by individuals; and, until the absolute title had been divested and had passed to the county, by virtue of the act of 1901 (B. & C. Comp. § 3132) such land was assessable to the owner. Berger v. Multnomah County, 45 Or. 402, 78 Pac. 224. Baker and Childs by purchasing at a subsequent sheriff's sale for a tax levied and assessed prior to July 1, 1901, obtained only such title as the defendant had at the time of the assessment and levy (45 Or. 407, 78 Pac. 224); that is, a right to redeem from the county. The right of the county, therefore, was the dominant and superior right, not only in respect to the claim of the defendant, but of Baker and Childs as well. By section 3132, B. & C. Comp., the land was redeemable at any time before July 1, 1901, for sales made prior thereto, but, if not redeemed within that time, then the title to the land vested in the county without issuance of deed or other formality, if the assessment, levy, and sale were valid. No redemption was made by defendant, or by any one in her behalf, or by Baker and Childs, before that date, and it has not been suggested by any one who is a party to this suit that any of these tax sales were for any reason void. We must assume, therefore, that at least an apparent record title passed to the county on July 1, 1901. Plaintiff seems to think that by paying to the county clerk on October 26, 1906, as defendant's agent, the aggregate amount of these delinquent taxes, taking his receipt and receiving from him the several certificates of sale, which had been issued to the county by the sheriff, he thereby recovered the title, or redeemed the property, and removed from the record any apparent cloud cast upon the title by the record of these sales, for he testifies that he thereupon dismissed the pending suit against the county, without taking any decree, considering that it could serve no further purpose. But no authority arising either from statute or from any order of the county court is shown to be possessed by the clerk to thus deal with the property of the county, and, if some authority did exist, his act of handing over the sheriff's certificates could not, in any event, transfer or release a title in realty, which by the plain words of the statute had become vested and was absolute. It would thus appear, not only that plaintiff has not fully performed the terms of his contract, without which he cannot recover, but also that the defendant, contrary to her and her agent's formerly self-conceived notions, had, and still has, much need of the services of the plaintiff, or of some other attorney, to perfect the title to the premises.

The defendant seems to rely upon the claim that, when the premises were subsequently sold to Baker and Childs for the taxes assessed to her for the year 1901, the county in some manner lost all its interest acquired by the previous sales, and such rights became vested in the new purchasers, and that, when she received their deeds of conveyance, all tax titles had become centered in her. But the theories of both parties are at fault. When the county bid in this land, it acquired "all the estate or interest therein of the owners" (B. & C. Comp. § 3122), subject to re-firmed.

For these reasons, the decree must be af

In re KOLLER'S ESTATE.
SMITH V. MELZNER.

(Supreme Court of Montana. Dec. 8, 1909.)
1. EXECUTORS AND ADMINISTRATORS (8 35*)-
REVOCATION OF APPOINTMENT.

Rev. Codes, § 7447, provides that, when letters of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent or any competent person, at the request of any of them, may obtain the revocation of the letters, and be entitled to administration by presenting a petition praying such revocation, and that letters of administration be issued to him. Intestate's mother, who lived in Hungary, signed a petition in that country for the appointment of a person named as administrator, and, after that date, another person was appointed. Held, that her request for the appointment of the person named impliedly authorized that person to take the necessary steps to secure the removal of any administrator who had been appointed, and that such person in his petition properly incorporated a request for the removal of the person who had been appointed.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 248, 253; Dec. Dig. § 35.*]

2. APPEAL AND ERROR (§ 193*) -PRESERVA TION IN LOWER COURT OF GROUNDS OF RE

VIEW.

4. PLEADING (§ 172*)-REPLY.

Where, in a proceeding to secure the revocation of the appointment of an administrator, and to have petitioner appointed in his stead, the answer of the administrator stated that petitioner was a partner of decedent, and no reply being filed, and the proof at the hearing showed that petitioner was not a partner of decedent, it was not an abuse of discretion for the court to allow the petitioner, after the conclusion of the testimony, to file a reply denying such partnership.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 337; Dec. Dig. § 172.*]

Appeal from District Court, Silver Bow County; Michael Donlan, Judge.

In the matter of the estate of Joseph Koller, deceased, Paul Smith petitioned to have the appointment of A. B. Melzner as administrator revoked, and to be appointed in his stead. From an order revoking the appointment, Melzner appeals. Affirmed.

Louis P. Donovan, for appellant. Mattison, Cavanaugh & Poore, for respondent.

court of Silver Bow county appointed A. B. SMITH, J. On April 14, 1909, the district Melzner, the public administrator of the County, administrator of the estate of Joseph Koller, deceased. Koller died on the 24th A petition for the removal of an adminis- day of February, 1909. On April 17, 1909, trator, and the appointment of the petitioner Paul Smith filed with the court a duly veriin his place, alleged "that the sole heir at law of the decedent, as your petitioner is informed fied petition setting forth, on information and believes, is Theresa Koller, the mother of and belief, the following matters, viz.: That said decedent, aged sixty-one years, and now the father of deceased died in the year 1885. residing in Hungary, Europe. * Your petitioner is informed and believes that said That the sole heir of deceased was his mothTheresa Koller, the surviving mother of said er, Theresa Koller, then residing in Hungary, decedent is the sole heir of decedent. *in Europe. That deceased left no surviving Your petitioner has received from said Theresa wife or children. The petition also recited: Koller such request, in writing, duly executed "The petitioner has received from the said *** hereto attached and made a part of the petition." Held, in the absence of objection in Theresa Koller (a) request in writing duly the court below, that the allegations that The- executed, for his appointment as resa Koller is the mother of deceased, and that administrator, which request, together with she executed the alleged request for appoint- due proof of the identity of said Theresa Koller, are hereto attached and are made a part of this petition and are filed with this petition." The prayer of the petition was, in substance, that the letters of administration theretofore issued to Melzner be re

ment, were sufficient.

*

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1240; Dec. Dig. § 193;* Pleading, Cent. Dig. §§ 1355-1374.] 3. EXECUTORS AND ADMINISTRATORS (§ 35*)REVOCATION OF APPOINTMENT -APPOINTMENT OF SUCCESSOR.

-

*

Voked and that letters be issued to the petitioner, Smith. Attached to the petition were the following exhibits, viz.:

Under Rev, Codes, § 7446, providing that, when a person is a nonresident of a state, affidavits taken ex parte before any officer authorized by the laws of this state to take acknowl- Exhibit A: "[Title of Court and Cause.] edgments and administer oaths out of this state may be received as prima facie evidence of the Request for the Appointment of Administraidentity of the party, if free from suspicion, and tor. To the Above-Entitled Court, and to the the fact is established to the satisfaction of the Honorable Michael Donlan, Judge Thereof: court, in proceedings to revoke the appoint- The undersigned, Theresa Koller, respectfulment of an administrator and to secure the appointment of a petitioner in his stead, a writ-ly shows to this court: That she is the surten request of decedent's mother, who was a viving mother of Joseph Koller, deceased: nonresident, entitled in the court and cause, and *

that said deceased was unmarried addressed to the judge, was virtually a plead- and left no surviving children; that the faing, and together with an affidavit that she was decedent's mother, and that affiant saw her sign the request, being before the court, were sufficient to show that the petitioner had received the mother's request, and it was unnecessary to formally offer the petition and affidavit in evidence.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 35.*]

ther of said deceased is dead, and the under-
signed
is the only heir at law of
said deceased, and as such is entitled to let-
ters of administration upon his estate; that
your petitioner is a resident of *** Hun-
gary, Europe, and for that reason is unable
to undertake the administration of said es-

tate,

*

but requests that Paul Smith | lant is that the petition does not state facts may be appointed administrator of sufficient to warrant the order made, for the said estate in her stead. [Signed] Theresa reason that it shows on its face that Theresa Koller. Witnesses to signature: Michael Koller did not formally request the revocaKoller, Robert C. Heingartner." tion of his letters. He relies upon the proviExhibit B: "[Title of Court and Cause.] sions of section 7447, Rev. Codes, which reads Affidavit of Identity of Theresa Koller. Unit- as follows: "When letters of administration ed States Consulate-General, Vienna, Aus- have been granted to any other person than tria-ss.: Michael Koller, being first duly the surviving husband or wife, child, father, sworn, deposes and says: That he is a resi- mother, brother or sister of the intestate, and dent of the county of Wiselburg, Hungary, one of them who is competent, or any compeEurope, and is of the age of thirty-six years; tent person at the written request of any that he is a surviving brother of Joseph Kol- one of them, may obtain the revocation of ler who died in Butte, Silver Bow county, the letters, and be entitled to the adminisMontana, on or about the 24th day of Feb-tration, by presenting to the court a petition ruary, 1909, and that he is a son of Theresa Koller, who is the mother of deceased Joseph Koller; that he saw his mother, Theresa Koller, sign the foregoing request for the appointment of administrator; that he knows of his own knowledge that the said Theresa Koller is the surviving mother of said Joseph Koller, deceased; that the contents of the said request have been read to affiant and he is familiar with the facts therein stated, and that the same are true. [Signed] Michael Koller. Subscribed and sworn to before me this 29th day of March, 1909. [Signed] W. A. Rubles. United States Consul General, at Vienna, Austria. [Seal United States Consulate.]"

Melzner, as administrator, filed an answer denying every allegation of the petition, with the exception of a few formal matters of record, and alleging, as a separate affirmative reason why Smith should not be appointed, the fact that, at the time of the death of Koller, Smith was his partner. The matter was heard by the court on April 28th. Before any testimony was introduced, Melzner objected to any being received for the reason that there was no reply to the allegation that Smith was a partner of deceased. Counsel for Smith stated that no reply was necessary, but that they did orally deny the allegation and would show that Smith was not a partner. The objection was overruled, and in the course of the proceedings it was shown that Koller and Smith were not partners at the time of the death of the former, and the court so found. At the conclusion of the testimony, counsel for Melzner requested the court to make formal findings of fact and conclusions of law, whereupon counsel for Smith asked leave to file a written reply to the answer. The court stated that no reply was necessary, but granted the request, over objection of the attorneys for Melzner; and on the same day a reply was filed denying that deceased and Smith were partners. The court found all of the facts substantially as alleged in Smith's petition and reply, and entered an order revoking the letters of administration theretofore issued to Melzner, and appointing Smith administrator of the estate. From this order, an appeal was taken.

praying the revocation and that letters of administration may be issued to him." The record shows that on March 29th the request, signed by her, was in Hungary. It was filed in court on April 17th, three days after Melzner's appointment. As he had not been appointed when she executed the paper writing, no request for his removal could properly have been made at that time. She appears to have been diligent in invoking the powers of the court. We hold that in requesting the appointment of Smith, under the circumstances disclosed in this case, she impliedly authorized him to take the necessary steps to secure the removal of any obstacle to the exercise of her right to nominate, and that Smith properly incorporated in his petition a request for Melzner's removal. We do not understand that there is anything in the case entitled In re Craigie's Estate, 24 Mont. 37, 60 Pac. 495, in conflict with these views. This court in that case said: "If the appellant desired to avail himself of the right created by section 2460 (section 7447, Rev. Codes), it was incumbent upon him to make it appear that at least one of the heirs and next of kin who requested him to obtain the revocation of Kenck's letters and ask letters for himself is the widow, child, father, mother, brother, or sister of the decedent. This he failed to do, and consequently did not bring himself within the terms of the only statute which confers the right to revoke letters already issued upon the ground that those nominating him are better entitled to administer than is Kenck." In that case the "heirs and next of kin" formally requested the revocation of the letters, and the point here involved was not considered. If appellant's contention be correct, then it would be necessary to return the written request to the mother, with instructions to incorporate therein an additional request that Smith include in his petition a prayer for the revocation of Melzner's letters. We are of opinion that such action would involve unnecessary delay, and, perhaps, expense, and accomplish nothing substantial.

2. Again, it is contended that there is in the petition no direct allegation that Theresa Koller is the mother of the deceased, or that she executed the alleged request. We find