ON REHEARING; JUDGMENT AFFIRMED. The case is before us on rehearing.
The facts may be thus briefly restated: The plaintiff commenced this action in ejectment to recover certain real property which had been sold for nonpayment of taxes. The action was not commenced until more than three years after the sale. The defendants Guy H. Smith and Roy E. Smith were purchasers at the tax sale and have been in possession of the lands ever since the sale. Their deed is valid on its face. The defendants Ogle occupied the lands as tenants of the Smiths during most of that period. The defendants Smith (hereinafter to be called the defendants) pleaded the short statute of limitation, which provides in part that every action to recover the possession of lands sold for taxes shall be commenced within three years from the date of the sale, § 69-845, Oregon Code 1930. *Page 286 It was in effect stipulated by counsel on the trial that the parcel of real property in question is one of 1100 such parcels sold for taxes in the tax foreclosure suit of Marion County v.Max Highstone et al.; that such foreclosure proceedings were held invalid in Smith v. Carlson, 160 Or. 383, 85 P.2d 1028, as to the tract of land involved in that case because of excessive costs taxed against the property; and that the same irregularities in the proceedings exist with respect to the lands which are the subject matter of this action.
The circuit court entered judgment for the defendants; this court reversed. It was held that § 69-845 is not prescriptive in character, and the opinion concludes:
"The above being our construction of the statute, it follows that the defendants' rights were dependent solely upon the validity of their deed; and, of course, when they conceded that under this court's holding in Smith v. Carlson, supra, the deed was void, it followed that the defendants had no title to the property." 114 P.2d 118, 125.
We are satisfied that the court was right in holding in the former opinion that this is an action of ejectment and that, as is there stated, plaintiff "had sufficient title to warrant institution of this action".
This leaves but one question for re-examination, namely, the effect of the statute of limitation, which reads:
"Every action, suit or proceeding which may be commenced for the purpose of determining the validity of a sale of lands for taxes, or to quiet the title against such sale or to remove the cloud thereof, or to recover the possession of lands so sold * * * shall be commenced within three years from the date of the sale for taxes by the sheriff, and not otherwise, except in cases where the assessment and taxes for which the *Page 287 land was sold * * * had been paid before the sale, or the land redeemed after the sale, or the lands were not subject to taxation at the time the same were assessed * * *" § 69-845, Oregon Code 1930.
It is entirely obvious that this case falls within the words of the statute. It is an action to recover the possession of land sold for taxes. It was not commenced within three years from the date of the sale, and it is not a case where the taxes for which the land was sold were paid before the sale, or the land was redeemed after the sale, or was not subject to taxation at the time it was assessed. Unless, therefore, some reason not disclosed by the language of the law itself prevents its application, the defendants are entitled to prevail.
The question whether the statute is one prescriptive in nature — that is, whether possession by the tax purchaser under the tax deed must accompany the running of the statutory time — may be left open. But what this court said on that subject in Martin v.White, 53 Or. 319, 100 P. 290, beginning at p. 326, cannot, we believe, be justly characterized as dictum. The statute there under consideration was in substance not different from the statute applicable here, though it did not contain the exceptions found in that statute. The suit was one to remove the cloud of the defendant's tax title from the plaintiff's title. It was not commenced until after the three-year period had run. The property had never been in the actual possession of anyone. The defendant pleaded the statute as a bar, but the court rejected the defense because it was a prescriptive statute, and, as stated, the property had never been in the possession of anyone. The construction thus given was the reason for withholding the protection of the statute from the defendant, and *Page 288 on that phase of the case was the very heart of the decision. The facts of the case, the issues made by the pleading, called for a construction of the statute, and the court in construing it did not indulge in dictum, but announced a decision.
The doctrine of Martin v. White was reiterated in Dufur v.Healy, 56 Or. 49, 55, 107 P. 692, and the statute held not to bar the action because possession by the purchaser at the tax sale had existed for less than the statutory period. Martin v.White was again cited in Harter v. Cone, 59 Or. 43,115 P. 1070, in which certain tax deeds were held to be void for want of authority on the part of the sheriff to make the sale. The action was in ejectment and the defendant, the purchaser at the tax sale, pleaded the statute of limitation among other defenses. The defendant contended that since he was in possession of the land at the time of the commencement of the action, though not for the full three-year period, he had constructive possession during all that time by virtue of his recorded tax deeds. The court answered this contention by quoting from that portion of the opinion inMartin v. White which holds that the statute is prescriptive in character. And in Smith v. Shattuck, 12 Or. 362, 369, 7 P. 335, it was directly held that possession under a defective tax deed for the three-year period was a good defense in an action of ejectment brought by the former owner of the land, the statute at the time reading:
"Any suit or proceeding for the recovery of lands sold for taxes, except in cases where taxes have been paid on the land redeemed, as provided by law, shall be commenced within three years of recording the tax deed of sale, and not thereafter." General Laws of Oregon 1843-1872, p. 771, § 107. (Deady and Lane Code). *Page 289
The court cited Pillow v. Roberts, 54 U.S. 472, 14 L.ed. 228, a leading case, in which the supreme court adopted and applied a similar construction given by the Arkansas court to the statute of that state which prescribed a limitation of five years to actions against the purchaser for the recovery of lands sold for the nonpayment of taxes.
But, notwithstanding that the construction announced in these cases is to be regarded as a precedent, we deem it proper to indicate no opinion as to whether it should be in all respects adhered to in future cases. The question of the effect to be given the statute in a case where the purchaser at the tax sale is not in possession of the land, or where the former owner remains in possession or where the land is unoccupied, is not now before us. Therefore, "we need not inquire", as the supreme court of the United States said in a similar situation, "whether the Legislature intended that the action should be barred, where the purchaser at the tax sale was not in possession". Pillow v.Roberts, supra.
The argument on behalf of the plaintiff is that the tax sale under which the defendants claim is void, that it was so declared in Smith v. Carlson, supra, and, therefore, that there is nothing upon which the statute of limitation can operate. In effect, it is said that to apply the statute in these circumstances would amount to confiscation of the plaintiff's property.
It is true that the opinion in the Carlson case used the word "void" in setting aside the sale, but the court was not there dealing with the statute of limitation. The question was whether the title of the purchaser at the tax sale could withstand an attack made before the statutory period had run and the court held that, in *Page 290 those circumstances, the erroneous assessment of excessive costs in the sum of 84 cents against each parcel of land was an irregularity rendering the sale void. We think that the court is not precluded by that decision from examining the question whether the plaintiff in this case may now, after the expiration of three years, impeach the sale.
The distinction between the two cases was put with great force and ability by Chief Justice Ryan, speaking for the court inOconto Company v. Jerrard, 46 Wis. 317, 325, 50 N.W. 591. In that case there was an invalid assessment. The court, after referring to its previous decisions in which it had been held that where there is an invalid assessment "there is no tax", said:
"Strong as this language is, it would have been true of the tax deed in question, and would be true still, were the validity of the tax deed an open question. But these things were said, in the one case of a tax proceeding which had not matured in a deed, and in the other of a tax deed upon which the statute had not run. The former was a proceeding to enjoin a tax deed, and the latter to foreclose a tax deed. In both, the validity of the tax proceeding was open to inquiry, was the precise subject of litigation. There was no bar to the inquiry. The rights of the parties rested on their intrinsic validity, wholly unaffected by the time of the litigation. The language of the court applies to the circumstances and conditions of the questions in litigation. Here the question is, whether the respondents have not suffered the time to pass, within which they had the right to scrutinize the tax proceeding, or to raise such objections to the tax deed, or to apply such language to either; whether the statute has not closed their mouths forever, absolved the tax proceeding from all such errors, established the tax deed beyond impeachment, and barred the better title in favor of the worse, according to the operation of all statutes of limitation affecting the title to realty." *Page 291
The former owners, seeking to set aside the sale, were held to be barred by lapse of time, the court saying:
"The respondents had their day to impeach the tax proceeding and avoid the tax deed. Then they might have said that the groundwork was so defective that there was no tax, and that the deed was therefore no tax deed. This they did not then do, and they are now too late to do it. They suffered the statute to purge the tax proceeding of all defects, to raise the tax deed above impeachment. Their objections may be well founded. But they come out of time. What the respondents might have said, they cannot now say. The statute has left them like one estopped to speak the truth, because they did not speak it when they might."
On the grounds thus stated we are of the opinion that other Oregon cases invalidating tax sales which it might be contended are inconsistent with the defense of the statute of limitation in this case are distinguishable. See, Barber v. Newbegin, 154 Or. 55, 58 P.2d 1254; Wing v. Parrott, 154 Or. 405,60 P.2d 603; Watson v. Jantzer, 151 Or. 1, 47 P.2d 239; Peterson v.Graham, 131 Or. 290, 279 P. 553, 282 P. 1084; Hoskins v.Dwight, 69 Or. 558, 139 P. 922; Hodgkin v. Boswell, 63 Or. 589, 127 P. 985; Walton v. Moore, 58 Or. 237, 113 P. 58, 114 P. 105.
This is a case of possession by the purchasers at the tax sale for more than three years after the sale under a deed valid on its face — a case free from the complexities and the confusion in the decisions found where the tax deed is void on its face, or the purchaser has not taken possession, or where both of these elements concur. See, Matthews v. Blake, 16 Wyo. 116,92 P. 242, and annotation, 27 L.R.A. (N.S.) 340-345. The rule applicable here is correctly stated, we think, *Page 292 in that annotation, at p. 345 of the cited volume, as follows:
"Whichever view is taken of the function of a tax deed, it is virtually agreed upon all sides that it is effectual to start running a special short-term statute of limitations, whatever may be its infirmities, provided it is not absolutely void on jurisdictional grounds. Defects, irregularities, informalities, errors, and omissions in the antecedent proceedings of assessment, taxation, and sale, not jurisdictional, however grave and fatal to the validity of the tax deed in an action seasonably begun, are all cured and foreclosed when the special statute has run the prescribed length of time. The very purpose of such a statute is to shut off inquiry into all such matters, and confirm the tax deed in spite of them, and unless it does this it is nugatory. The decisions make this quite plain, and are in harmony, to this effect at least, where the tax deed is regular on its face."
To the same effect are, 2 Blackwell on Tax Titles (5th Ed.) 842, § 895; 4 Tiffany, Real Property (3d Ed.) 680, § 1251; 26 R.C.L. (Taxation) 443, § 399; Black on Tax Titles (2d Ed.) 636, § 498.
Numerous decisions support the quoted text, among which we may refer to the following: In Williams v. Conroy, 35 Colo. 117,83 P. 959, the plaintiff's deeds were, as stated in the opinion, "regular and valid on their face, though because of informalities in the sale they are, as a matter of law, void." The statute, which barred actions "for the recovery of land sold for taxes" after five years from the execution and delivery of a deed therefor by the treasurer, was held to be applicable. It was said that "a void deed taken in good faith constitutes sufficient color of title under our statute of limitations", 35 Colo. 121. It was further said that the "statute does not require possession to *Page 293 be taken of land by the purchaser at a tax sale as an essential condition to the running of the statute of limitations. The tax deed draws to it constructive possession of unoccupied land * * *" 35 Colo. 124.
In Trulock v. Bentley, 67 Iowa 602, 25 N.W. 824, it appears that the Iowa statute requires service on the owner of land sold for taxes of notice of the expiration of the time for redemption, and that in this case the proof of such service was defective. The basis of the decision holding that the five-year limitation statute barred an action to recover the property from the purchaser at the tax sale was that there was a mere defective performance of a jurisdictional requirement. The court said that the act, therefore, could not "be regarded as void in the sense in which the word is used when applied to acts done without authority".
In the case of the Oconto Company v. Jerrard, supra, the irregularity, as has been stated, consisted of an invalid assessment. The action was held to be barred by the statute. The court distinguished cases where "municipalities or their taxing officers assume to levy a tax or to institute a tax proceeding not authorized by statute" and which "is a mere usurpation, and absolutely void throughout for all purposes."
"In such a case", it was said, "there is nothing for the statute of limitations to act upon. But when there is statutory authority within the scope of the constitution, to raise money by taxation, from property subject to taxation, to come into the public treasury for public use, and there is an actual attempt, under color of law, to exercise the authority, it is, while infieri, prima facie a valid tax proceeding; and when the statute of limitations has run upon it, it is conclusively established as a valid exercise of the taxing power. *Page 294
"The distinction is, in principle, like that between judicial jurisdiction and judicial error. Want of jurisdiction is always an open question, everywhere. Error can be imputed only by appropriate judicial proceeding, within the time limited by law to establish it." 46 Wis. 328.
Milledge v. Coleman, 47 Wis. 184, 2 N.W. 77, applies the same rule to a case where the price of a United States revenue stamp was illegally included in the amount for which the land was sold for taxes. The identical question arising under the Wisconsin statute was determined in the same way in Geekie v. KirbyCarpenter Co., 106 U.S. 379, 27 L.ed. 157, 1 S.Ct. 315, the court saying:
"The general authority of the taxing officers and the liability of the land to taxation having existed, there was no want of authority to put the taxing power in motion. That being so, the lapse of time establishes conclusively the validity of the tax and of the sale, as against the irregularity in question. There having been jurisdiction, all error was conclusively barred by the statute."
In Peck v. Comstock, 6 Fed. 22, the Wisconsin statute was held to be a bar in a case where the purchaser at the tax sale had failed to comply with a statute requiring notice of his application for a deed to be given by publication. See, also,Litch v. Bryant, 46 Colo. 160, 103 P. 289; Barrow v. Wilson, 39 La. Ann. 403, 406, 2 So. 809; McDougall v. Montlezum, 39 La. Ann. 1005, 3 So. 273; Reilly v. Blaser, 61 Mich. 399, 402,28 N.W. 151; Cornelius v. Ferguson, 23 S.D. 187, 121 N.W. 91;Halsted v. Silberstein, 196 N.Y. 1, 89 N.E. 443; Houssel v.Boggs, 17 Neb. 94, 22 N.W. 226; Towle v. Holt, 14 Neb. 221,228, 15 N.W. 203; Bowman v. Cockrill, 6 Kan. 311, 339. *Page 295
If the rule of law announced by these authorities is sound, as we think it is, it remains only to inquire whether there are jurisdictional defects in the proceedings for the sale of the lands in question. The only irregularity pointed to is the taxation of excessive costs in a small sum which went into the amount for which the property was sold. In Milledge v. Coleman, supra, and Geekie v. Kirby Carpenter Co., supra, similar errors were held not to prevent the running of the statute. The argument in those cases was that the land was not sold for nonpayment of taxes. The answer of the supreme court of Wisconsin to that contention is as follows:
"In the case before us, the land was sold for $8.08, of which $8.03 were confessedly legal taxes and legal charges. It is quite true the land was sold for a gross sum, a part of which was legal and a part illegal. But we have no doubt there was a sale for the nonpayment of taxes, within the meaning of the statute. If the limitation does not apply to the deed in this case, neither would it apply to any case where there was included in the amount for which the land was sold an illegal excess arising from the mistakes of the taxing officers, in extending the tax, or where there was an erroneous charge for fees, whether made intentionally, or through mistake of law." Milledge v. Coleman,supra.
The cases cited all arose under statutes which authorized the sale of land for taxes to be made by ministerial officers without court proceedings. The sale here was decreed by the circuit court in a judicial proceeding regularly commenced pursuant to law, notice of which was duly given to the property owners whose interests were affected, and all of whom, including the then owners of the property here involved, had the right and the opportunity to appear and be heard. *Page 296 §§ 69-816, 69-817, 69-820, Oregon Code 1930. This court inHoskins v. Dwight, 69 Or. 558, 566, 139 P. 922, took occasion to comment upon the altered viewpoint of the court, induced by the change from a summary proceeding by ministerial officers to a foreclosure by suit. It was said:
"The statute now in vogue making taxes charged against real property a lien thereon, and providing for the foreclosure thereof, gives the owner of the premises, upon whom a summons must be served, a day in court where he may present his defense, and affords him an opportunity to be heard before he can be deprived of his land, thereby avoiding the necessity of resorting to the hard-and-fast rule of summary proceedings undertaken by ministerial officers to collect the burden formerly imposed: Washington T. L. Co. v. Smith, 34 Wn. 625, 76 P. 267. In order to protect the rights of the taxpayer, it was essential to hold that, before title to real property could be involuntarily alienated in a proceeding that was not judicial in character, every step required by the statute to assess, levy and collect the tax should have been strictly performed. Under the enactment as it now exists, his rights will be securely guarded by courts competent to afford him every protection that the law guarantees, and, this being so, there is no necessity for ordinarily invoking the rule of strict construction."
See, also, Black on Tax Titles (2d Ed.) 225, § 178.
If the improper addition of a small sum to the amount for which the property is sold is not deemed fatal as against the plea of the statute of limitation when the proceedings are ex parte and summary in character, for a much stronger reason should the lapse of the statutory period be held to set all such questions at rest when the error occurs in a judicial proceeding. Having jurisdiction to decide, the court had jurisdiction to decide erroneously. The tax had been assessed *Page 297 and was delinquent, and the decree of the court was the sheriff's authority for making the sale, § 69-820, Oregon Code 1930. "There was no want of authority to put the taxing power in motion",Geekie v. Kirby Carpenter Co., supra. We think the irregularity did not go to the jurisdiction to make the sale. Statutes of limitation are "statutes of repose, and should not be evaded by a forced construction * * * (they) would be of little use if they protected those only who could otherwise show an indefeasible title to the land", Pillow v. Roberts. If the statute were to be held inapplicable in this case we do not know to what kind of a case it should be applied nor what sort of errors in the proceedings it would cure. The legislature certainly intended to accomplish something by its enactment, and we think that its purpose was to encourage the purchase of land ordered to be sold for delinquent taxes by giving prospective purchasers assurance that after the lapse of three years — at least where the purchasers have taken possession — their titles would not be disturbed on account of errors and irregularities such as occurred in the foreclosure suit of Marion County v. Highstone. See, Black on Tax Titles (2d Ed.) 628, § 492. This is the public policy of the state, and it is not the business of the courts to thwart that policy nor by "ingenious and astute construction" (Pillow v. Roberts, supra) to make a dead letter of the statute but rather to carry out its provisions and the public policy which it declares.
The plaintiff argues that the legislature cannot cure void proceedings by lapse of time alone. The principle is thus stated in 2 Blackwell on Tax Titles 840, § 895:
"* * * A tax purchaser who gets no valid title and does not take actual possession, nor give any notice that he claims possession, has no right upon which to *Page 298 build a limitation. There is nothing to give repose to. The law cannot by its fiat create rights, any more than it can make value by a word. Rights are parts of the substance of things; all the law can do is to protect them. If the actual possession is in the purchaser, the legislature can bar the owner after a short term, no matter what defect may exist in the tax proceedings, or how void the deed may be on its face or otherwise. If the actual possession is in the owner, the law-makers may bar the purchaser; but they cannot compel the owner to bring suit against the purchaser, nor even a bill to remove the cloud. It is utterly beyond legislative power to transfer to B. property of which A., the owner, is in the actual possession by himself or his agent or lessee or licensee, by void tax proceedings and lapse of time."
This doctrine was applied in Groesbeck v. Seeley, 13 Mich. 329, cited with approval in Martin v. White, supra. In that case the court held that the statute of limitation had not run because the owner remained in possession of the land after the tax sale. The court said that to sustain the tax title (which was defective) in these circumstances would "be nothing more nor less than depriving one of his property without any legal possession and is simply confiscation by ministerial and not judicial action." In several of the states a tax deed valid on its face gives to the grantee constructive possession of the land. See, 2 Blackwell on Tax Titles 839, § 895; 4 Cooley, Taxation (4th Ed.) 2974, § 1513. One of these states is Wisconsin. Its construction of its statute was followed and applied in Bardon v. Land andRiver Improvement Co., 157 U.S. 327, 39 L.ed. 719, 15 S.Ct. 650, a case in which no constitutional objections seem to have been suggested. The Washington court has extended the protection of the statute of that state to cases where the tax deed *Page 299 was void on account of jurisdictional defects: Keller v. Davis,93 Wn. 336, 160 P. 946; Huber v. Brown, 57 Wn. 654,107 P. 850; and to cases where the judgment was procured by fraud —Savage v. Ash, 86 Wn. 43, 149 P. 325; Fleming v. Stearns,66 Wn. 655, 120 P. 522.
Perhaps valid constitutional objections might be urged in some of these cases. But we need not pursue the subject further. The soundness of the rule stated by Mr. Blackwell and applied inMartin v. White and Groesbeck v. Seeley is not now before us. We see no necessity for deciding constitutional questions not presented by the record in this case nor for determining what would be the result were the facts different from what they are. As we have seen, the sale here was not void in the jurisdictional sense. The defendants' deed, which by the statute then in existence was prima facie evidence of the assessment of the tax, its nonpayment, the regularity of the proceedings, and other essential facts (69-828, Oregon Code 1930) is valid on its face and constitutes color of title. Blackwell, op. cit. 850, § 899;Pillow v. Roberts, supra; Martin v. White, supra; 26 R.C.L. (Taxation) 445, § 401. The defendants went into possession under their deed and so remained for the statutory period. This is the situation upon which the statute operated. The mere statement of these facts, without more, is sufficient demonstration that to hold that the defendants' title is now immune from attack by reason of the running of the statute of limitation is not to deprive the plaintiff of its property by mere lapse of time or without due process of law. No authority to the contrary has been called to our attention, and there is a host of cases, many of which have been cited in this opinion, in which the statute *Page 300 has been enforced in similar circumstances. "Such statutes", it is said in 4 Cooley, Taxation (4th Ed.) 2971, § 1511, "are enacted under the sovereign power of the state to limit within reasonable bounds the time for which its courts shall remain open for the adjustment of controversies, and when the time is not unreasonably short they are grounded in sound policy." And, as the same author points out (2975, § 1513), "it probably cannot be said that it is beyond the constitutional power of the legislature to give the recorded tax-deed conclusive effect as evidence of title after the lapse of five years' time, in any case where the adverse claimant has no actual possession."
The court is criticized for its attitude toward Smith v.Carlson. It is said that the irregularity in the tax proceeding in Marion County v. Highstone must have been deemed jurisdictional else the court could not have declared the sale void on collateral attack. We shall not debate the question of what constitutes a collateral attack on a judgment or decree. All the members of the court who concur in this opinion are not agreed that it was a collateral attack in Smith v. Carlson. Putting that matter to one side, every one familiar with the course of decision in tax-title cases in this court knows that they have been deemed sui generis, and have not been governed by the rules applicable to the ordinary type of litigation. This was for two reasons: one, solicitude for the poor man facing loss of his property because of inability to pay his taxes, and the other, the fact that proceedings to sell property for delinquent taxes, whether by judicial or purely administrative proceedings, are in invitum. So, in passing on these cases, the court has at times deemed it an important if not decisive factor that there is great disparity between *Page 301 the amount for which the property sold and its value. Watson v.Jantzer, 151 Or. 1, 10, 47 P.2d 239. In no other class of cases would a consideration of that sort have been deemed relevant, and it goes without saying that it has no bearing whatever on the question of jurisdiction. Rightly or wrongly, the court has assumed broad equitable powers in these cases to accomplish what were undoubtedly deemed beneficent purposes.
At an early date this court held that the taxation of excessive costs in a judicial proceeding is not a jurisdictional defect, and hence there was no lack of jurisdiction to enter the decree in Marion County v. Highstone. Since this is so clear and evident, it is unreasonable to suppose that the court thought any differently about it in deciding Smith v. Carlson, but, rather, that, in accordance with prior decisions, it was applying a rule peculiar to cases involving the validity of titles based on sales for delinquent taxes.
Cogent reasons are advanced for overruling Smith v. Carlson and the precedents which it followed. But a majority of the court, including the writer of this opinion, are unwilling at this time to take this course, though not all of us for the same reasons. It is, perhaps, sufficient to say that those of us who question the correctness of these decisions deem it highly inexpedient and fraught with possibilities of great harm to declare valid today the identical sale which so recently we adjudged to be invalid.
As held in the former opinion, the absence of findings constitutes error. In State ex rel. v. Bassett, 166 Or. 628,113 P.2d 432, the judgment was reversed because no findings had been entered, and the cause was remanded with instructions to make and enter findings *Page 302 and a new judgment. The absence of a bill of exceptions or transcript of testimony made necessary the course there taken. In the instant case the testimony is all before us, and we exercise the authority granted by Art. VII, § 3, of the Constitution to affirm the judgment notwithstanding the error.
We conclude that the action is barred by the statute of limitation. We are, therefore, unable to adhere to our former opinion.
The judgment is affirmed.
KELLY, C.J., and RAND, J., concur in the result.
BAILEY and BELT, JJ., concur.
Mr. Justice BRAND concurs in the result. He is of the opinion that Smith v. Carlson ought to be overruled, but, if that is not done, that the defendants are entitled to prevail on the plea of the statute of limitation.