I believe that our previous opinion correctly disposed of all contentions then submitted. I dissent from the reasoning employed by the majority. I concur in the result that they reach. My reasons follow.
It will be recalled that in 1935 Marion County instituted in the circuit court an omnibus tax foreclosure suit, entitledMarion County v. Highstone, affecting 1100 items of tax delinquent real property. The suit culminated in a decree which ordered the sale of the 1100 delinquent properties. Among the latter were the property involved in this action and another parcel which became the subject-matter of the suit entitledSmith v. Carlson, 160 Or. 383, 85 P.2d 1028. In *Page 303 Smith v. Carlson we held that the decree entered in the omnibus tax foreclosure suit was void. The suit entitled Marion Countyv. Highstone was maintained under the provisions of our laws which authorize the foreclosure of the liens of delinquent taxes by suits in the circuit court. The procedure is substantially similar to that pursued in the foreclosure of the liens of mortgages. In Smith v. Carlson this court held that the decree entered in Marion County v. Highstone awarded 84 cents excessive costs against the delinquent property owned by the Carlsons. Referring to that circumstance, the decision said: "The proceeding as to it is void." Having so declared, the decree, sale and tax deed were held nullities. The property was restored to the Carlsons. It is stipulated that excessive costs were also charged against the property involved in the present action which is one of ejectment. Thus, it will be seen that the defendants (the delinquent owners) in Smith v. Carlson made a collateral attack upon the decree entitled Marion County v. Highstone, and that the attack succeeded.
It is highly essential, I believe, that we bear in mind the fact that Smith v. Carlson held that the foreclosure proceeding was void. The majority deal with Smith v. Carlson as though the word "void" does not appear in the decision. However, as already stated, the heart of that decision is the line which reads: "The proceeding as to it (excessive cost) is void." The decree inMarion County v. Highstone was not subject to impeachment in a collateral proceeding like Smith v. Carlson unless the decree and its attendant proceedings were void. As is universally held, a decree which is merely irregular or voidable, however irregular or voidable it may be, is not subject to collateral attack. *Page 304 Smith v. Carlson was properly decided only in the event the decree in Marion County v. Highstone was void, that is, a nullity. But the majority in dealing with Smith v. Carlson seem to delete from it the word "void" and insert in its place the word "irregular" or possibly the word "voidable". But if that substitution is made, then Smith v. Carlson, as I just stated, was erroneously decided. It is impossible to infer that when Mr. Justice BEAN wrote Smith v. Carlson he used the word "void" as the equivalent of "voidable" or "irregular". In the first place, if he used the word in that sense the result of his decision, as already indicated, was wrong. In the next place, this court had already held several times that a sale by a sheriff of tax delinquent property for a sum larger than the amount actually due is void. It held the sales void on the theory that the sheriff had no authority or jurisdiction to make the sale when he asked more than the true amount which was actually due. A reading ofDarling v. Christensen, 166 Or. 17, 107 P.2d 585, Watson v.Jantzer, 151 Or. 1, 47 P.2d 239, Barber v. Newbegin,154 Or. 55, 58 P.2d 1254, and Wing v. Parrott, 154 Or. 405,68 P.2d 603, will readily show that Smith v. Carlson used the word "void" in its literal sense; that is, as the equivalent of nullity. Each of those four decisions passed upon situations very similar to the one in Smith v. Carlson, and each, in expressing the conclusion of this court, used the word "void". Not one of them used "voidable" or "irregular". Watson v. Jantzer took repeated occasion to brand the delinquent tax foreclosure proceeding as void. In that case, as in the present one, excessive costs had been taxed; in fact, that decision expressly rejected a contention that the proceeding was merely irregular or voidable. The occasion for rejecting the contention *Page 305 was an argument made by the holder of the tax deed that § 69-841, Oregon Code 1930, cured the defects. That section of our laws cured "irregularities, omissions or defects" in tax titles, but the decision said:
"Again we say that this section could only cure irregularities and is not applicable where the land is sold for a tax that was unlawfully increased by the addition of unwarranted costs, * * *. Holding, as we do, that the foreclosure sale was void by reason of the addition of excessive costs * * *."
The reason this court has held repeatedly that the addition of an unwarranted amount to the tax renders the proceeding void is evident. Before the act which I shall later cite was adopted, this court held that the sheriff in selling delinquent property had authority to sell it only for the true amount that was owing, and that if he demanded more than the true amount he acted beyond the scope of his authority or jurisdiction. See, for instance,Walton v. Moore, 58 Or. 237, 113 P. 58, 114 P. 105, andHodgkin v. Boswell, 63 Or. 589, 127 P. 985. Both held the unauthorized addition of a sum to the amount due rendered the sale void. It is evident that Smith v. Carlson did not use the word "void" carelessly and as the equivalent of "voidable" but in its literal sense.
The majority ought either to give effect to Smith v. Carlson, in which event their conclusion cannot stand, or overrule it and its companion decisions. Since Smith v. Carlson has not been overruled, I shall in this specially concurring opinion give effect to its holding and employ the word "void" as it is there used.
The majority, referring to our short-term statute of limitations, which was in effect in 1935 (§ 69-845, Oregon Code 1930), say: "If the statute were held to be inapplicable in this case, we do not know to what *Page 306 kind of a case it should be applied nor what sort of errors in the proceedings it would cure."
Clearly, the statute is applicable as a bar in all cases where the statutory period has run; provided the case does not fall within one of the three exceptions enumerated in the statute and the defense has been neither waived nor withdrawn. Statutes of limitation are not curative, but if such is the nature of this one, then the inquiry "what sort of errors in proceedings it would cure" is met by the fact that in Smith v. Carlson this court held that the proceeding out of which the defendants' tax deed issued was void. As already indicated, the word "void" was used in its literal sense, and not as the equivalent of voidable or irregular. Citations to authorities are not necessary to warrant the statement that a void sale, deed or proceeding is wholly without force or effect and is incapable of being made otherwise. Anything which is void is null and incapable of confirmation, ratification or cure.
The majority say that our original opinion misstated the reasoning employed in Martin v. White, 53 Or. 319, 100 P. 290, and Dufur v. Healy, 56 Or. 49, 107 P. 692, and indicate that possibly our short term statute of limitations is prescriptive in character. I do not subscribe to their criticisms of our previous decision, and observe that the parties do not entertain their views. For instance, the brief of amicus curiae says: "We are in exact agreement with this Honorable Court that § 69-845, Oregon Code 1930, and subsequent amendments are statutes of limitations." The defendants' brief upon rehearing does not question the propriety of our interpretation of the statute, but, to the contrary, says: "We pleaded it as a statute of limitation." In Victor Land Co. v. Winters, 59 Or. 420,116 P. 1070, *Page 307 which was decided after Martin v. White and Dufur v. Healy, Mr. Justice McBRIDE, on behalf of this court, said:
"Section 3128 B. C. Comp., requires all actions to recover property sold for taxes to be commenced within three years from the recording of the tax. This is, in its nature, a statute of limitations."
That is exactly what was held in our original decision; that is, we held it to be, as it purports to be, a statute of limitations.
Possibly the majority do not entertain the thought that the statute is actually a prescriptive one, but believe that the holder of a tax deed must have possession if he desires to plead the statute of limitations. If that is what they mean, the introduction of that suggestion into our delinquent tax foreclosure law, which is already sufficiently complex, will add to the uncertainty. Although the majority seemingly believe that the tax title claimant must have possession (most delinquent property is vacant), they intimate that the necessity for possession is readily satisfied — it is satisfied by a mere fiction. For instance, they quote from Williams v. Conroy,35 Colo. 117, 83 P. 959 (which decision, incidentally, has met with criticism) the following: "The tax deed draws to it constructive possession." Thus, the indispensable requisite of possession is readily supplied — a fiction supplies it. Since it is so readily and artificially supplied, it is strange that the majority create a necessity for it.
The majority hold that the plaintiff cannot maintain this action. It will be recalled that Smith v. Carlson, as already indicated, held that the delinquent tax foreclosure proceeding out of which the defendants obtained their deed was void. If the foreclosure proceeding *Page 308 was void, the decree entered in the proceeding was also void; and that being true, the deed possessed by these defendants is similarly void. Thus, the defendants have no title to the property. They have nothing which a statute of limitations can protect. Such a statute is an implement of defense, not a source of title. The four Washington decisions cited by the majority in support of the statement, "The Washington court has extended the protection of the statute of that state to cases where the tax deed was void," in my opinion, do not warrant the statement. It is true that two of them make sweeping statements of that general kind, but the decisions did not go that far. Certainly, no decision has ever held that a tax deed which has been held void by a court can usher in a title by prescription.
Further, I am satisfied that the effect of the stipulation signed by the parties (it is quoted in our previous opinion) was to withdraw the plea of the statute of limitations and to submit the cause on its merits. Moreover, neither in the circuit court nor in this court until now upon rehearing have the defendants relied upon the statute of limitations. They have constantly argued that they acquired title by adverse possession. Parties cannot present upon appeal issues which were not submitted to the trial court.
It appears to me that the decision of the majority is unfortunate. It introduces into our complex tax law a new principle, foreign to our tax foreclosure procedure, which the majority seemingly identify as "jurisdiction to make the sale," meaning administrative jurisdiction. In introducing this principle, the majority quote from a text the following:
"Whichever view is taken of the function of a tax deed, it is virtually agreed upon all sides that it is *Page 309 effectual to start running a short-term statute of limitations, whatever may be its infirmities, provided it is not absolutely void on jurisdictional grounds."
With that statement I agree. The cases to which the text referred were unaffected by laws whereby the lien of delinquent taxes is foreclosed by judicial proceeding. Having introduced that thought, the majority say: "If the rule of law announced by these decisions is sound, and 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 authorities to which the majority then referred passed upon foreclosures ordered by administrative as distinguished from judicial decrees. Unlike the present foreclosure, none of those had been impeached by judicial decision. Finally, the majority state their conclusion as follows: "We think the irregularity did not go to the jurisdiction to make the sale." However, this court has held that when a sheriff sells for an amount larger than the delinquent taxes, he lacks authority or jurisdiction to make the sale and that, therefore, the sale is void. Two instances areWalton v. Moore, supra, and Hodgkin v. Boswell, supra. Those decisions have not been overruled, but have been several times cited with approval. Moreover, it will be recalled that Smith v.Carlson held that the entire proceedings were void; in other words, when the sheriff sold the plaintiff's property he had a void order of sale, and nothing else. That being true, he certainly had no "jurisdiction (right or authority) to make the sale." Thus, concerning the sheriff's authority, this court has reached two opinions directly opposite one another: In Smith v.Carlson we said the sheriff had no valid authority — we now say the contrary. It appears *Page 310 to me that we ought either to overrule Smith v. Carlson or give it effect.
Further, the majority, after referring to decisions which sustained tax sales based upon proceedings of a nonjudicial type, say: "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." But Smith v. Carlson "set all such questions at rest" (that is, those concerning the defendants' tax title) long before the "lapse of the statutory period" by holding that the proceeding was void. The quotation from the majority opinion which I have just made is succeeded by the following: "Having jurisdiction to decide, the court had jurisdiction to decide erroneously. The tax had been assessed and was delinquent, and the decree of the court was the sheriff's authority for making the sale." The words "having jurisdiction to decide" refer to the tax foreclosure suit entitled Marion County v. Highstone to which the majority refer in the first paragraph of their decision. The words "the decree of the court was the sheriff's authority for making the sale" mean the decree entered in MarionCounty v. Highstone. All that the majority say would be true if this court had not held in Smith v. Carlson that the foreclosure proceeding (Marion County v. Highstone) was void. In Smith v. Carlson this court held that the "decree of the court" which the majority in the above-quoted language say "was the sheriff's authority for making the sale" was a void decree, and held further that the sale which he made pursuant to its authority was a *Page 311 nullity and that it conferred no title. Frankness should prompt the majority to say, "The void decree of the court was the sheriff's authority for making the sale." This court, in harmony with the universal trend of authority, has held that a writ of execution based upon a void decree confers no authority upon the sheriff (it too is void), and the resulting sale yields no title:Willamette Real Estate Co. v. Hendrix, 28 Or. 485, 42 P. 514, 52 Am. St. Rep. 800; 21 Am. Jur., Executions, p. 27, § 23; 23 C.J., Executions, p. 319, § 30. According to 31 Am. Jur., Judgments, p. 91 § 430:
"All proceedings founded on the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment."
Thus, the words "there was no want of authority" found in the above-quoted passages are untrue. The direct opposite of that holding was announced in Smith v. Carlson; in fact, that decision decided everything embraced in the quoted language contrary to the majority's present position.
Without further analysis of the majority's opinion, I state my belief that our previous decision is free from error. It is free from error provided Smith v. Carlson is sound. The principles which governed that case also govern the present one.
The carefully prepared brief of amicus curiae, in stressing the importance of this cause, dwells upon the numerous recent titles in this state which are predicated upon tax foreclosure proceedings. It argues in behalf of security for such titles. The circumstances persuade me that the all-important phase of our present cause is whether Smith v. Carlson was properly decided. In writing our previous opinion I felt bound *Page 312 by the authority of that decision, although I doubted the correctness of it. I thought that the decree entered in MarionCounty v. Highstone was not subject to collateral attack. I am now satisfied that that decision is erroneous and that we ought to say that we will no longer adhere to it. The treatment accorded it by the majority does not appeal to me. I believe thatSmith v. Carlson failed to yield to the decree entered in the tax foreclosure proceeding the effect to which it was entitled. The majority, while voicing approval of that decision, evade its holding. Now that the majority have spoken, no one can know whether the decree entered in a tax foreclosure suit is free from collateral attack or subject to it. Sections 69-829, Oregon Code 1930, and 110-920, O.C.L.A., expressly declare that the decree entered in such a suit "shall be conclusive evidence of its regularity and validity in all collateral proceedings" and that it "shall estop all persons" from making such attacks. I shall now endeavor to determine whether those provisions of our laws governing the foreclosure of the lien of delinquent taxes prohibit an attack upon the decree entered in Marion County v.Highstone. If they prohibit such attacks, Smith v. Carlson was wrongly decided; and likewise if such attacks cannot be maintained, the defendants' title must be sustained.
It will be recalled from what was said in our previous opinion in this case that the Smiths in Smith v. Carlson are defendants in this case. Before twice becoming litigants the Smiths purchased two parcels of real property upon which Marion County had foreclosed liens of delinquent taxes. The foreclosure was effected in a suit of the omnibus type, entitled Marion Countyv. Highstone. It was conducted in the circuit court. One of the properties which the Smiths bought *Page 313 became the subject-matter of the suit entitled Smith v.Carlson. In it the Smiths alleged their tax title and made the foreclosed tax delinquent owners (the Carlsons) the defendants. They asked that their title be deemed valid and that it be quieted against the claims of the Carlsons. The latter challenged the validity of the tax foreclosure proceedings and in Smith v.Carlson this court sustained the defense. In the present action the Smiths are again parties; this time they are defendants. Another of their purchases is the subject-matter of the action. This time the cause assumes the form of an action of ejectment brought by the delinquent owner who, like the Carlsons in Smithv. Carlson, challenges the regularity of the tax foreclosure proceedings. As we have said, we assumed, in writing our previous opinion, that Smith v. Carlson was properly decided and, therefore, deemed the Smiths' deed to the property claimed by the plaintiff invalid.
Both of the aforementioned tax titles had their origin, as already indicated, in a suit in the circuit court entitledMarion County v. Highstone. The complaint in that suit described 1100 parcels of real property including the two just mentioned and made the owners of all the parcels defendants. Among the latter were the Carlsons and the predecessors in title of the plaintiff in this action. The suit ended in a decree foreclosing the lien of the delinquent taxes and in an order for the sale of the foreclosed properties. After the entry of the decree Marion County filed a cost bill, and still later the sales ordered by the decree occurred. It was through those sales that the Smiths acquired their two tax deeds.
In Smith v. Carlson this court said that the decree inMarion County v. Highstone awarded the county *Page 314 84 cents more costs against the Carlsons than it was entitled to charge. The stipulation states that a similar excessive taxation of costs occurred in the part of the decree foreclosing the delinquent tax liens against the property now owned by this plaintiff. The excessive award of costs seemingly occurred in the following manner. The cost of publishing the omnibus summons affecting the 1100 items of property was $1,826. That amount divided by 1100 is $1.66; but against each property $2.50 costs were awarded, or 84 cents more than the expenditure.
It will be observed that Smith v. Carlson was not an appeal from the decree entered in Marion County v. Highstone. Notwithstanding the positive language of § 69-829 that decision refused to deem the decree just mentioned "conclusive evidence of its regularity and validity." It should also be noticed that the sale of the delinquent properties was not made by the sheriff through the exercise of purely administrative powers, but as the final culmination of a judicial proceeding to which the tax delinquent owners had been summoned. Nevertheless, Smith v.Carlson, after declaring "the costs of $2.50 taxes against the defendant taxpayers' property were excessive", held "the foreclosure proceeding as to it is void." Thus, the collateral attack was sustained.
Note will now be taken of the statutes of this state which authorize the foreclosure of the lien of delinquent taxes and the sale of tax delinquent properties. My purpose is to determine whether the decree in Marion County v. Highstone was subject to collateral attack.
In 1907 a fundamental change was made in the statutes of this state which deal with tax delinquent *Page 315 properties. The change required that the sale of tax delinquent properties be preceded by a tax foreclosure suit instituted in the circuit court to which the owners of the tax delinquent properties must be made parties defendant and must be summoned to appear. I shall shortly take note of the statutes in detail, but before so doing shall mention briefly the previous procedure. Prior to 1907 the sale was not preceded with a judicial proceeding of any kind. The sheriff, in a purely administrative capacity, sold all properties which the county's records indicated were tax delinquent. There was no judicial determination of the purported delinquency, the amount of the taxes or of any other circumstance. The practice was governed by §§ 3117 to 3127 B. and C. Comp. Under that procedure the sheriff's authority for the sale of the property supposedly delinquent was a warrant issued, not by a court, but by the county clerk. Upon its receipt the sheriff published notice of the future sale for four successive weeks. At the end of that time he made the sale. The proceeding was in reality a forfeiture and the decisions so termed it. It will be seen that an owner whose property was included in the delinquent list and who had a defense was afforded no opportunity by way of a judicial proceeding to present it unless he reversed the situation and, through the medium of a suit instituted by himself, made an attack upon the sale.
It was under those circumstances, which afforded the owner no opportunity to challenge the regularity of the tax delinquency proceedings until he himself instituted a suit, that the courts applied to the statutes governing the sales the rules of strict construction and held that departures from the letter of the law were fatal. However, it will be noticed that under that procedure the tax delinquent owner upon filing his suit *Page 316 was not faced with a previous decree like the one entitledMarion County v. Highstone. When he filed his complaint nothing averred in it had been the subject-matter of judicial determination. An instance illustrative of the judicial attitude prior to the 1907 enactment is Walton v. Moore, 58 Or. 237,113 P. 58, 114 P. 105. In that case the amount of interest on the delinquent tax was $1.05, but the notice of sale erroneously stated it to be $1.12. The statute required that the amount of accrued interest be indicated in the notice. The decision held that this misstatement rendered the sale void. Upon rehearing the tax title claimant argued that the discrepancy was so small that it ought to be deemed unsubstantial. That argument was answered in the decision as follows:
"* * * But in proceedings in invitum, where it is proposed to take a man's property for one thirty-fifth of its assessed value, the law does care for small things, and will not infrequently consider them to prevent an inequitable forfeiture. From the case of Shylock v. Antonio, reported at large by Shakespeare, down to the last volume of Oregon reports, the courts have held that statutes providing for a forfeiture shall be strictly construed, and far be it from this court to say that a sum of money, coined by the government of the United States, which under certain circumstances it is a penitentiary offense to steal, and which is sufficient to furnish bread to the hungry, cheering drink to the thirsty, and to the miser the means of contributing to charity, shall be treated as unsubstantial in a case of this character."
Let us now turn to the statutes governing the foreclosure of the liens of delinquent taxes which were in effect at the time when Marion County v. Highstone was begun. Those statutes had their origin in 1907 Session Laws, Ch. 267. That act repealed the previous statutes authorizing sale by the sheriff upon the warrant *Page 317 of the county clerk and inaugurated the procedure which will shortly be reviewed in detail; in short, that procedure consists of a foreclosure suit to which the alleged delinquent owner is summoned and which is followed by a decree foreclosing the lien of the delinquent taxes in the event the delinquency is established. Marion County v. Highstone was begun June 13, 1935, and its decree was entered November 20 of that year. The complaint in Smith v. Carlson was filed February 21, 1936, and the one in the present action in 1939. Since many amendments were made to 1907 Session Laws, Ch. 267, before Marion County v.Highstone was instituted, I shall not cite the various sections of that act, but, rather, the sections of the 1930 code and in other instances session laws adopted after 1930, but before 1935. In proceeding with the review of those statutes, I shall employ the present tense although some of those laws have since been amended.
Section 1, Ch. 326 of 1933 Session Laws renders all taxes unpaid on December 15 delinquent. Section 69-738, Oregon Code 1930, requires the tax collector to send written notice of delinquency to each delinquent taxpayer and to state in it "the rate of interest and penalties applicable thereto." The notice must "also contain a statement of the date on or after which a certificate of delinquency may be issued." Section 69-801, Oregon Code 1930, makes provision for the issuance by the sheriff of certificates of delinquency to individuals who have discharged the delinquency. The certificates are rendered issuable six months after the tax charged against the property becomes delinquent. Section 69-807 permits the foreclosure of certificates of delinquency by a suit filed in the circuit court "after the expiration of three years from the first date of delinquency of any tax included in a certificate." That *Page 318 section of our laws specifies the required contents of the summons in such a suit. Section 69-807 pertains to suits filed by individuals who foreclose certificates of delinquency, but § 69-816 extends those provisions to suits filed by counties for the foreclosure of certificates of delinquency held by the county. According to § 69-816 the foreclosure suit is "a proceeding in rem against the property itself." That section also provides that the person whose name appears as owner upon the latest tax roll must be made defendant. Service of summons is effected by publication once a week for a period of not less than four successive weeks. This section (69-816) also says: "All persons owning or claiming to own or having or claiming to have an interest therein (the property) hereby are required to take notice of said proceedings, and of any and all steps thereunder."
In the manner indicated rather briefly in the preceding paragraph a suit for the foreclosure of the lien of delinquent taxes is instituted. I shall now describe what happens after the suit has been begun. Section 69-820 makes provision for an "application for judgment and decree foreclosing the tax lien." It provides that no decree can be entered unless the plaintiff has made an application of that kind and 60 days has expired after the last day of the month in which the application was filed. Continuing, it permits a defense to the suit by anyone who asserts an interest in the property supposedly delinquent in the payment of its taxes. His pleading must be under oath and must state "the particular cause of objection." When such objection has been filed and an application for judgment has been made, the court "shall hear and determine the matter in a summary manner without other pleadings, *Page 319 * * *." It further provides that the court at its discretion may continue any application for judgment wherein a defense had been filed "in order to secure substantial justice to the contestants." The section authorizes amendments to the pleadings to the same extent as are permissible "in any personal civil action." It then recites several possible irregularities in the assessment rolls which shall not be deemed fatal objections and others which in the discretion of the court may be corrected. Further, the section provides:
"The court shall give judgment and decree for such taxes, assessments, penalties, interest and costs, as shall appear to be due upon the several lots or tracts described in said summons and application for judgment and decree, and such judgment and decree shall be a several judgment against and lien upon each tract. * * * and the court shall order and direct the clerk to make out and enter an order for the sale of such real property * * * or vacate and set aside the certificate of delinquency, or make such other order, judgment or decree as in law or equity may be just. Said order shall be signed by the judge, and certified copy of such order, together with a list of the property therein ordered sold, shall be delivered to the sheriff of the county, and shall be full and sufficient authority for him to proceed to sell said property, * * *. The sheriff shall immediately after receiving the copy of the order, judgment and decree of the court, proceed to sell said property * * *."
The section declares that the sale shall be made only after ten days' notice has been given. A copy of the required notice forms a part of the section. Finally, § 69-820 says that at the sheriff's sale the bidder offering to pay the amount due for the least quantity of the property shall be accepted as the purchaser. Section 69-821 directs the sheriff to issue a deed to the purchaser and says that the deed "shall vest in the *Page 320 grantee, his heirs and assigns, the title to the property." Section 69-822 authorizes appeals to this court from the judgments and decrees of the circuit court entered in these suits and directs that the manner of taking the appeals and the proceedings thereafter shall conform to the procedure governing appeals in equitable causes, with a single exception immaterial to our present purpose. Section 69-829 says:
"Any judgment or decree for the sale of real estate shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment and could have been presented as a defense to the application for such judgment or decree in the court wherein the same was rendered, and shall estop all persons from raising any objections as to the amount of the taxes, assessments, penalties, interest or costs due or collectible at the date of the entry of such judgment and decree; and as to all such questions the judgment or decree itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except * * *."
Here follow exceptions immaterial to our present purpose. The section further declares that any defendant or other person interested in the property who had not appeared in the proceeding "may, upon good cause shown and upon such terms as may be proper, be allowed to defend and file his objections after such judgment or decree, and within one year after the entry thereof, upon such terms as may be just; * * *."
The above is a review of all statutes in effect in 1935 material to our present purpose. Subsequent amendments have been made, but none of them has altered the fundamentals of the 1907 act — a foreclosure of the lien of the delinquent taxes by a judicial proceeding. *Page 321
The preceding review makes it clear that when the suit entitledMarion County v. Highstone was instituted our statute books contained a complete code of procedure for the foreclosure of the liens of delinquent taxes. That procedure authorized the maintenance of a suit in the circuit court in which the property is deemed the party defendant. The suit is a proceeding in rem, and is begun by the filing of a summons. The procedure does not contemplate the filing of a complaint, but the absence of such a pleading is immaterial since the information generally found in a complaint must, by virtue of § 69-807, be included in the summons. The application for judgment, which must be filed before judgment can be rendered, amplifies the information contained in the summons. The procedure makes provision for the appearance of any owner whose property is described in the summons and who wishes to challenge the tax or any phase of the alleged liability of his property. Such an owner files a "cause of objection." The next step is taken by the county which must file the aforementioned "application for judgment." Those two documents thereupon become, in part at least, the pleadings. Section 69-820 authorizes amendments to them to the same extent as amendments are allowed in other types of civil proceedings. After both of these papers have been filed, the trial occurs. Adequate provision is made for appeal from the decree. It will be seen from the rather elaborate provisions of § 69-829 that the legislature contemplated that the entry of the decree of foreclosure, in the event no appeal is taken, should terminate all disputes and claims concerning the delinquent taxes, their foreclosure and the resulting sale, except claims (1) that the tax had been paid, or (2) that the property was not taxable. *Page 322
To make doubly sure of its meaning, § 69-829 expressly says:
"As to all such questions the judgment or decree itself shall be conclusive evidence of its regularity and validity in all collateral proceedings except * * *."
There follows a statement of the two exceptions just indicated. Thus, § 69-829 is a statement in statutory form of the rule which renders judgments and decrees immune from collateral attack.
As already said, the defense in Smith v. Carlson was a collateral, not a direct, attack upon the decree entitled MarionCounty v. Highstone. The defense could not succeed unless that decree was swept aside. Smith v. Carlson swept it aside and held that that decree was void. The sole reason for the holding was a finding that excessive costs had been awarded to Marion County, the plaintiff in the foreclosure suit. But § 69-829 declares that the entry of the decree in the delinquent tax foreclosure suit "shall estop all persons from raising any objections as to the amount of * * * costs * * *; and as to all such questions the judgment or decree itself shall be conclusive evidence of its regularity and validity in all collateral proceedings."
No citation of authority is required to justify the statement that no judgment is subject to collateral attack unless it is wholly void. The mere fact that the court which entered it committed error, however glaring it was, does not warrant disregard of the judgment in another proceeding if the court had authority to pass upon the case and had jurisdiction over the persons, if the action was a personal one, or over the property, if the cause was in rem. Therefore, the sole inquiry when a collateral attack is made upon a judgment *Page 323 is whether the court possessed jurisdiction. In the early case ofNicklin v. Hobin, 13 Or. 406, 10 P. 835, this court, in an able opinion written by Mr. Justice LORD, applied those principles to a situation closely akin to the present one. In that case it appeared that one Brenan, upon an appeal to the circuit court from a judgment of a justice of the peace, won a verdict for $1.00 against Hobin, the defendant in the above-cited case. But the circuit court awarded to Hobin judgment against Brenan in the amount of $62.95 costs. Later, Brenan died and then the plaintiff, as administrator of his estate, commenced the suit under review; he asked for an injunction to restrain Hobin from enforcing payment of the judgment. The circuit court granted an injunction. The above-cited decision, in entering a decree for the defendant (Hobin), said:
"Although it may be true that the amount of costs taxed or allowed by the court was wrong, still it was but an error of judgment not a defect of jurisdiction. * * * The question whether a judgment is right or wrong is a very different one from whether it is valid or void. * * * And where a court has jurisdiction, the judgment or determination is binding and obligatory until reversed, without reference to the question whether it is right or wrong. `Nor is it any ground for disregarding a judicial determination that one party has got a great deal more than was justly due him.'"
Recently we applied the same rule. In Travelers Insurance Co. v.Staiger, 157 Or. 143, 69 P.2d 1069, we said:
"From collateral attack all judgments are invulnerable unless they be void. An erroneous award of costs made, however, by a court which possesses jurisdiction to tax costs does not render the award void and the resulting judgment subject to collateral attack."
By virtue of the express provisions of §§ 69-815 and 69-816, Oregon Code 1930, the circuit court had *Page 324 authority to award costs in Marion County v. Highstone. It seems clear that an excessive award of costs in that suit could not render the decree and the resulting sale void. But before reaching a final conclusion, let us consider some other phases of the matter.
The decree entered in Marion County v. Highstone against the property of the Carlsons was a default decree; and, of course, the proceeding was in rem. The rule which renders judgments immune from attack in another proceeding is applicable to judgments in rem: Freeman on Judgments, 5th ed., § 1531, and 31 Am. Jur., Judgments, p. 178, § 579. That rule also applies to default judgments: Freeman on Judgments, 5th ed., § 1297; Black on Judgments, 2d ed., § 246; and 31 Am. Jur., Judgments, p. 178, § 579. Authority can also be found for the statement that immunity from indirect attack is enjoyed by judgments entered in summary proceedings: 34 C.J., Judgments, p. 514, § 816.
The rule which I have been mentioning and which protects judgments from collateral attack is universally deemed a shield for judgments of courts which direct the sale of land for delinquent taxes: Freeman on Judgments, 5th ed., § 400; Black on Judgments, 2d ed., § 247; 34 C.J., Judgments, p. 516, § 819; and see Clinton v. City of Portland, 26 Or. 410, 38 P. 407.
Our laws authorizing the foreclosure of the lien of delinquent taxes had their inspiration in the laws of the State of Washington upon the same subject and, as was said in Hoskins v.Dwight, 69 Or. 558, 139 P. 922:
"When the statute of another state has been incorporated in the laws of Oregon, the interpretation placed upon the enactment by the court of last resort of the state from which the law was taken and made before *Page 325 its adoption in this state governs the construction to be placed upon it in Oregon."
The decision was speaking of the very enactment (1907 Session Laws, Ch. 267) with which we are now concerned. In Getchell v.Walker, 129 Or. 602, 278 P. 93, the same view was voiced. We there said concerning the same statute:
"The decisions of the Supreme Court of Washington are entitled to great weight because our legislature is supposed to have had knowledge of them when our statute was enacted."
Let us, therefore, turn to the Washington decisions and ascertain whether in that state a decree for the foreclosure of delinquent taxes was subject in 1907 to collateral attack of the type sustained in Smith v. Carlson upon the decree entered inMarion County v. Highstone.
Chapter 124, § 132 (p. 382) of 1893 Session Laws of Washington said:
"* * * any judgment for the sale of real estate for delinquent taxes rendered after the passage of this act, except as otherwise provided in this section, shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or assessments have been paid, or the real estate was not liable to the tax or assessment."
That enactment became § 1767 Bal. Code. It will be observed that that law is substantially the same as the part of § 69-829 previously quoted. In fact, ours, with *Page 326 the exception of some strengthening clauses, was taken word for word from the Washington act.
From Swanson v. Hoyle, 32 Wn. 169, 72 P. 1011, decided in 1903, four years before our 1907 legislative session convened, the following is taken:
"It is next insisted that the judgment should have been vacated because there was an illegal tax, amounting to 97 cents, for the year 1897, which was included in the judgment. A number of authorities are cited to the effect that a sale for taxes more than are lawfully chargeable is a sale without jurisdiction, and therefore void. This rule is possibly correct where the sale is made upon an assessment and levy by ministerial officers, and where there is no opportunity to test the legality of the tax until after sale. But where the sale is made upon a judgment by a court of general jurisdiction, and where the owner of the property is regularly summoned to appear, and has an opportunity to defend against irregularity of the tax levy or the amount of the tax, and neglects to do so, and where the court has jurisdiction to give judgment for the amount of the taxes which shall appear to be due, and which appears in law and equity to be just, as is the rule under the statute above quoted, a different rule applies. Kizer v. Caufield, 17 Wn. 417, 425 (49 P. 1064). If the 97 cents was not properly chargeable against the property, the defendant could have defended against the judgment to that extent. Objections of this character are matters of defense to the original action. They are not matters which could be properly considered in the case at bar, because this is not an action to correct errors. It is one to vacate the whole judgment. If errors which could have been avoided by the appearance of the defendant have crept into the judgment by reason of his default, he cannot complain thereof, after judgment is entered, where the court has jurisdiction."
Washington Timber etc. Co. v. Smith, 34 Wn. 625, 76 P. 267, decided in 1904, three years before our act *Page 327 was enacted, also rejected a collateral attack upon a tax foreclosure judgment. From it I quote:
"The next objection to the sufficiency of the foreclosure is that the certificates of delinquency were not properly filed in the office of the clerk of the superior court before publication of summons. * * * It having been already determined that the court had jurisdiction of the cause by reason of the time the certificates were issued, and it appearing by the record that the certificates were filed in time, it follows that the point now raised relates to a mere irregularity which should have been raised in the foreclosure case. While the nunc pro tunc order was made after judgment, yet, assuming, as we must, that the record speaks the truth, the correction was such a one as could have been made during the progress of the action, under § 18, p. 299, Laws of 1899. Appellant is therefore estopped to raise the objection now. See § 1767, Bal. Code. Also Swanson v. Hoyle,32 Wn. 169, 72 P. 1011. The summons and its publication, we think, complied with the law. The property owner was therefore within the jurisdiction of the court, and was required to take notice of the action. The summons was by publication, it is true, but, under § 3, pp. 385, 386, Laws of 1901, `all persons owning or claiming to own, or having or claiming to have, an interest therein are hereby required to take notice of said proceedings, and of any and all steps thereunder.'
"Appellant insists that, notwithstanding the statutes above cited and quoted, it is not estopped to raise objections now, and argues that Illinois has similar statutes, but that it has been held in that state that, where the taxpayer does not appear and make objection prior to the rendition of the judgment, there is no estoppel. It appears to have been so held in Belleville Nail Co. v. People ex rel., 98 Ill. 399. We, however, find no Illinois statute with a specific declaration that parties shall be estopped, as is the case in our statute cited above. With such a provision in our law, and with the positive declaration, quoted above, that all interested persons shall take notice of the steps taken *Page 328 in the cause, we see no reason why the statute shall not be given the force which was evidently intended, notwithstanding the fact that the summons is by publication only. The difficulties attending the collection of public revenue are many at best, and the relation of the citizen to the subject is somewhat different from his relation to the ordinary contractual obligations. He must take notice that by law his property is assessed each year, that the tax is due and delinquent at a fixed time, is a lien upon his land, and, if not paid, that the lien shall be enforced by foreclosure proceedings, and in the manner provided by statute. The action is not in personam but in rem, and we see no reason for making the distinction recognized by the above Illinois case, apparently based upon the ground that the service was by publication only."
In Rowland v. Eskeland, 40 Wn. 253, 82 P. 599, decided in 1905, two years before the Washington act was adopted in this state, the foreclosed owner brought an action of ejectment against the purchaser at the tax foreclosure sale. He presented three contentions: (1) nonservice of summons upon him; (2) although two-thirds of the property was nonassessable, the levies had been made upon the property as a whole; and (3) although the property was not a single tract, but consisted of two separate parcels, the assessment, the certificate, the foreclosure and sale treated the property as a single unit.
The first contention was, of course, available in a collateral attack. However, the court found it lacked merit and therefore rejected it. But the second and third contentions did not concern jurisdiction over the cause or over the parties. After the court had quoted the above-cited Washington statute, it dismissed those two attacks thus:
"If appellants desired to contest the collection of the taxes because of matters set out in the second and *Page 329 third defenses, they were required to do so in the foreclosure action. These questions can not be tried in this collateral proceeding, under the statute above cited."
Those three decisions were announced prior to 1907. None of them has been overruled; to the contrary, the Washington supreme court has constantly deemed tax foreclosure decrees immune from collateral attack. They have been held immune to the same extent as are judgments and decrees in all other types of judicial proceedings. It should be noted, however, that the tax statutes create two exceptions based upon the peculiar features of taxation: (1) where the property is nonassessable; and (2) when the tax was paid before the decree was entered.
A recent application by the Washington court of the rule which renders tax foreclosure decrees immune from collateral attack isColby v. Himes, 171 Wn. 83, 17 P.2d 606. In that decision the court once more rejected an attack upon a tax foreclosure decree. In so doing it reviewed and endorsed several of its previous decisions. A reading of that decision will indicate with what unswerving loyalty the court has held to its thesis that a decree entered in proceedings of this kind is conclusive evidence of its validity and regularity.
In Wilfong v. Ontario Land Co., 171 Fed. 51, the Circuit Court of Appeals for the Ninth Circuit gave effect to the interpretations made by the Supreme Court of Washington of their aforementioned statute and rejected a collateral attack. Referring to the departure from the statute upon which the foreclosed owner depended, the decision termed it "an irregularity which must be objected to if at all in the foreclosure proceeding."
Timmerman v. McCullagh, 55 Wn. 204, 104 P. 212, another of the Washington decisions, is very much in *Page 330 point. Its facts are quite similar to those in Swanson v.Hoyle, supra. It reversed a judgment in favor of the foreclosed owner entered in the superior court in a collateral attack upon the tax title. We now quote from the decision:
"There was an overcharge of interest, making the total sum recited as due in the certificate of delinquency somewhat larger than it should have been. Judgment was entered for this larger sum, and the property sold to satisfy the judgment. It is contended that the sale is void because of this excessive charge. But this was not fatal. Overcharges by the taxing officers have usually been held fatal to a summary sale of property for taxes where the proceedings are ex parte. But the sale in this instance was not summary nor ex parte. In this state sales of property for taxes are made only after a foreclosure of the tax lien, in a proceeding in which the owner is given notice and an opportunity to defend against overcharges or mistakes which increase the amount properly due. Being a party to the proceedings, he is estopped by the judgment to question collaterally matters which do not go to the jurisdiction of the court to render the judgment."
The above will suffice as a review of the Washington decisions. All of them gave effect to the rule which protects judgments (which are not invalid upon jurisdictional grounds) from collateral attack. And all of them were obedient to the legislative mandate which says that the foreclosure decree "shall estop all parties from raising any objections thereto" (the foreclosure decree) which could have been presented when the judicial action was taken, and which further declares that the decree "shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in * * *." It will be observed from the textbook citations previously given that the courts uniformly deem decrees entered in tax foreclosure proceedings *Page 331 as immune from collateral attack. And it will be recalled that Mr. Justice LORD, in Nicklin v. Hobin, supra, held that an erroneous award of costs by a court which had authority to tax costs does not subject the judgment to collateral attack. I am satisfied that the Washington decisions are sound and that our statutes are entitled to similar interpretation.
Let us now test Smith v. Carlson by the principles just reviewed. By that decision, because of an excessive award of costs, we impeached the decree entered in Marion County v.Highstone. But the circuit court which awarded the costs had jurisdiction over the cause (foreclosure of the liens) and over the res. It likewise had express authority to award costs and determine their amount: § 69-815. Section 69-829 says that the decree "shall estop all persons from raising any objections as to the amount of the * * * costs due or collectible at the date of the entry of such judgment and decree." When it developed that an excessive award of costs had been made, the owners of the property in question had three remedies: (1) to object to the costs; (2) to move within one year of the entry of the decree for its vacation; or (3) to appeal. Those were the remedies available to the delinquent taxpayer, and not the one which they chose. As we have seen, our own decisions have twice held that a judgment for costs is invulnerable to collateral attack to the same extent as judgments and decrees for any other type of relief. Other courts have held to the same effect: 34 C.J., Judgments, p. 564, § 864.
When the decision entitled Smith v. Carlson was written we overlooked the fact that in the crucible of the 1907 comprehensive act the old procedure of sale upon the warrant of the county clerk was converted *Page 332 into something fundamentally different. From that crucible there emerged the requirement of a judicial sale of the delinquent property which could take place only after a judicial determination of the amount due and the entry of an order directing that the sale be made. Having overlooked the fact that fundamental change had occurred, we cited in support of our decision Walton v. Moore, supra, and Hodgkin v. Boswell,63 Or. 589, 127 P. 985, both of which were concerned with the old procedure of sale upon the warrant of the county clerk.
The purpose of the 1907 act was to bring about a new course of procedure. It was a new beginning and represented a fresh approach to the problem of delinquent taxes. Under the old procedure the foreclosing officers commonly made a slip-up before the deed was delivered, and, since the delinquent owner was afforded no opportunity to manifest his objections, his suit for the nullification of the sale was usually successful. This was true even though the irregularity involved nothing but a few pennies. In that manner a maze of rules, often quite technical, were spun which in turn caused tax title after tax title to fail until finally tax deeds were regarded as nothing more important than scraps of paper. The decisions followed no pattern. The situation was indeed sui generis. Then came the 1907 act. The very purpose of new laws is often to get rid of old ideas, clarify the atmosphere and usher in a new course of procedure. The very heart of the new procedure is the suit for the foreclosure of the lien of delinquent taxes. If that feature of the procedure is faded out by judicial construction, nothing of consequence was accomplished through the 1907 act. I am satisfied that Walton v. Moore, supra, and Hodgkin v. Boswell, supra, are inapplicable to the *Page 333 procedure inaugurated by the 1907 act. Under that act and its subsequent amendments all existing objections must be presented before the foreclosure decree is entered — they cannot be reserved for a later collateral attack upon the decree. Every owner of real property is charged by the act with notice that his property is subject to taxation, that unpaid taxes become delinquent, and that the lien of delinquent taxes may be foreclosed in a proceeding in rem. He owes a duty to the state to keep informed concerning proceedings filed against his property.
This court has several times taken notice of the new procedure ushered in by the 1907 act. For instance, in Hoskins v. Dwight, the decision says:
"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 * * *."
The following decisions, in addition to the one from which I have just quoted, recognized the new procedure: Peterson v.Graham, 131 Or. 290, 279 P. 553, 282 P. 1084; Getchell v.Walker, 129 Or. 602, 278 P. 93; Coos County v. Stout LumberCo., 126 Or. 525, 270 P. 491; Gordon v. Adams, 125 Or. 662,268 P. 60; Flynn v. Davidson, 80 Or. 502, 155 P. 197, 157 P. 788. This list is not exhaustive.
I am satisfied that a foreclosure decree of the kind entered inMarion County v. Highstone is not subject to collateral attack. An objection concerning the amount of costs should have been voiced in the original proceeding. An owner who is the victim of a slip-up *Page 334 whereby his costs are miscalculated cannot ignore the judicial proceeding to which he has been summoned, permit his property to be sold and later institute a suit which, if sustained, will nullify all of the expensive work connected with the foreclosure of the liens of his delinquent taxes. Undoubtedly had the objection concerning these few cents of additional costs been presented to the court which adjudicated Marion County v.Highstone, the correct amount would have been promptly and inexpensively determined.
Notwithstanding our decision in Smith v. Carlson, I believe the irregularity concerning the taxation of costs cannot be employed in this action for the purpose of impeaching the decree upon which the Smiths' title is based. To employ the language of § 69-829, the plaintiff is "estopped" to make that contention, and the deed itself is "conclusive evidence of its regularity and validity." By holding otherwise foreclosure decrees, which in many instances are entered only after much expensive labor has been spent by the county officials, will be merely starting points for more law suits and more litigation.
Possibly it may be said that Darling v. Christensen, 166 Or. 17, 109 P.2d 585; Watson v. Jantzer, 151 Or. 1,47 P.2d 239; Barber v. Newbegin, 154 Or. 55, 58 P.2d 1254, and Wingv. Parrott, 154 Or. 405, 60 P.2d 603, are to like effect asSmith v. Carlson, and that if we adopt the interpretation of § 69-829 above stated we will disturb the titles to many tracts of land. All five of the decisions just cited adjudicated titles to parcels of real property. For obvious reasons they should not be disturbed and nothing which we can now do would affect them. *Page 335
The principle of law which is applicable to the situation before us is thus stated in 14 Am. Jur., Courts, p. 345, § 130:
"The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. To this the courts have established the exception that where a constitutional or statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision."
See to the same effect 21 C.J.S., Courts, p. 329, § 194b. Moreover, as is said in subdivision (a) of the section of the treatise just cited,
"A court of final decision may expressly define and declare the effect of a decision overruling a former decision, as to whether or not it shall be retroactive, or operate prospectively only, and may, by a saving clause in the overruling decision, preserve all rights accrued under the previous decision."
Hence, we need not be disturbed lest anything we now hold will impair any title which is based upon previous interpretations of the act under consideration.
Although I believe that our previous opinion correctly dealt with every issue which the briefs submitted, I am satisfied that the defendants' title is not subject to attack and that it must be sustained. The reasons developed in preceding paragraphs convince me that the objections which the plaintiff now presents against the defendants' tax title should have been voiced in the circuit court suit entitled Marion *Page 336 County v. Highstone and that they cannot be considered in this proceeding. That conclusion, I am satisfied, is demanded by § 69-829. Thus, I reach the conclusion that the defendants' title is free from defects, and since it is free from defects, the defendants needed no help from the statute of limitations.
I concur in the result reached by the majority. The above are my reasons. *Page 337