Petition for rehearing denied September 19, 1944 ON PETITION FOR REHEARING (151 P.2d 439) The plaintiff has filed a petition for rehearing in which, while still contending that the court in the foreclosure *Page 61 proceedings had jurisdiction notwithstanding the defect in the published summons, he urges that, even though such want of jurisdiction be conceded, we were, nevertheless, in error in holding that in those circumstances the short statute of limitations is not a bar to the defendant's assertion of their title. In view of the fact that counsel for the plaintiff have cited in their petition decisions of the Supreme Court of Washington not heretofore called to our attention by the parties, we deem it appropriate to take notice of the argument now advanced.
It is quite true that the Washington court has uniformly held that the short statute of limitations of that state may be invoked even in a case of a tax foreclosure sale absolutely void for want of jurisdiction in the court which entered the decree, as well as in a case where the decree was procured by fraud. SeeEagles v. General Electric Co., 5 Wash. 2d 20,104 P.2d 912; White v. Gehrman, 1 Wash. 2d 504, 96 P.2d 453;Jorgensen v. Thurston County, 145 Wash. 282, 259 P. 720;Keller v. Davis, 93 Wash. 336, 160 P. 946; Sparks v. StandardLumber Co., 92 Wash. 584, 159 P. 812; Savage v. Ash, 86 Wash. 43, 149 P. 325; Fleming v. Stearns, 66 Wash. 655, 120 P. 522;Baylis v. Kerrick, 64 Wash. 410, 116 P. 1082; Huber v. Brown,57 Wash. 654, 107 P. 850.
We called attention to four of these decisions in the course of the discussion in National Surety Corporation v. Smith, 168 Or. 265,299, 114 P.2d 118, 123 P.2d 203, but expressed no opinion as to whether they should be followed in this state, the question which they involved not being then before us. The National Surety Corporation case did, however, draw a distinction between cases where the court had, and those in which it did not have jurisdiction, and, as to *Page 62 the former, held that the short statute of limitations barred the attempt of the former owner of the property to attack the decree of foreclosure, at least where the purchaser at the tax sale had entered into possession.
But it is argued that, since we considered highly persuasive, if not controlling, certain decisions of the Washington court bearing on the question of the sufficiency of the summons, we should give like effect to that court's construction and application of the statute of limitations. Counsel assert, indeed, that such construction should have controlling effect, under the rule that, as it is sometimes stated, when one state adopts the statute of another it likewise adopts the construction given to the statute by the courts of the former state. But it is only a construction announced before the adoption of the statute that is ever considered controlling:Getchell v. Walker, 129 Or. 602, 609, 278 P. 93; Hoskins v.Dwight, 69 Or. 558, 566, 139 P. 922; State v. Townsend, 60 Or. 223,229, 118 P. 1020; and the earliest of the Washington cases relied upon is Huber v. Brown, supra, decided in 1910, whereas our statute modeled on that of Washington was enacted in 1907 (General Laws of Oregon 1907, Ch. 267). Moreover, the rule invoked by counsel is not one of universal application and will not be observed where such construction would not be in harmony with the spirit and policy of the legislation and decisions of the borrowing state: 34 Am. Jur., Limitation of Actions 43, § 41;Oleson v. Wilson, 20 Mont. 544, 52 P. 372, 63 Am. St. Rep. 639. The policy of this state in respect of the question in hand had been announced in Martin v. White, 53 Or. 319, 326, 100 P. 290, before the enactment of our present statute, and is contrary to the doctrine of the Washington court. It is true that in Martinv. White, supra, the court was not dealing with a tax *Page 63 foreclosure by judicial process; but that cannot make any difference here, for, whether the proceedings are purely administrative or judicial, the fundamental inquiry is the same, namely, whether the statute of limitations is effective to deprive the owner of real property of his title where the tax deed is a nullity owing to the want of jurisdiction to make the sale.
It follows, therefore, that upon this question the Washington cases are to be given only such weight as authority as would be accorded upon a like question to the decisions of the highest courts of any of the sister states, and, since the Washington decisions are not in harmony with precedent in this court, and, moreover, are opposed to the weight of authority (4 Cooley on Taxation, (4th ed.) 2970, § 1511, 2977, § 1513; 51 Am.Jur., Taxation 997, § 1158), we must decline to follow them, notwithstanding the deference due to the tribunal which announced them.
It is further argued that, in order to avoid constitutional objections arising from application of the statute to the case of a void sale, it is only necessary to withhold its application in those cases where the land in question remains in the actual possession of the original owner. This is the holding of Buty v.Goldfinch, 74 Wash. 532, 133 P. 1057, 46 L.R.A. (N.S.) 1065, Ann. Cas. 1915A, 604, and support for this view is sought to be found by counsel for the plaintiff in the statement in Cooley,ibid., 2975, § 1513, (quoted in National Surety Corporation v.Smith, supra, 168 Or. at p. 300) that "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 rule, as thus limited in Buty v. Goldfinch, *Page 64 supra, is in conflict with Martin v. White, supra, for that case involved the title to lands which had never been in the actual possession of any person, and the decision was that it was beyond the power of the legislature to transfer the title of the owner by lapse of time alone.
That this is not a doctrine peculiar to tax cases is illustrated by Stadelman v. Miner, 83 Or. 348, 377, 155 P. 708, 163 P. 585, 163 P. 983, where the court, on the authority ofMartin v. White, supra, held that a void administrator's sale of unoccupied lands did not start the special five-year statute of limitations running against the heirs, and that "it is beyond the power of the legislature to transfer to the purchaser the title of the owner by lapse of time alone." Both these cases reject the rule of constructive possession in the holder of a void title.
The statement in Cooley, relied on by the plaintiff, is not an assertion that in every case where the adverse claimant is not in actual possession such limitations are constitutional when applied to void sales. And, taken from its context, the language can be decidedly misleading. The discussion of this subject in Vol. 4 of Cooley on Taxation (4th ed.) commences at p. 2970, where it is said in § 1510 that generally short statutes of limitation "do not apply where the tax deed is void on its face, or the sale is absolutely void for jurisdictional defects." The author classifies the cases which may be affected by such statutes as follows: "1. Those in which the owner of the original title remains in possession after the tax-sale. 2. Those in which the land is then and remains afterward unoccupied. 3. Those in which the tax-purchaser enters and holds possession claiming title."
As to the third class, the author says that there is no sufficient reason why the holder of the original *Page 65 title should not be required to bring suit in a time less than twenty years; as to the first class, that "it would be manifest and most gross injustice to make lapse of time alone extinguish the title of the original owner"; and, as to the second class, that "the proper rule is not so clear." He proceeds:
"If no provision is made by statute under which ejectment can be brought in the case of a vacant possession, it would seem that neither claimant could be considered in law negligent, so as to render his claim the proper subject of a statute of repose, until possession was taken by his adversary; but if ejectment is allowed in such cases, then it may possibly be within the power of the legislature to declare that the title of that one of the parties who, constructively, is to be regarded in possession, shall become absolute, if not questioned by suit within the time by the statute limited for that purpose." (pp. 2972, 2973, § 1511)
There is no statute in Oregon authorizing the action of ejectment in the case of unoccupied lands.
In § 1513 the question of constructive possession is discussed, and it is in connection with that discussion that the quoted language is used. But the author condemns the fiction that a void tax title draws to itself constructive possession, and is extremely critical of the view that the statute of limitations runs in such a case, as the following brief quotation shows:
"In the very worst light in which the equities of the original owner may be viewed, they are at the least equal to those of the tax-purchaser; and to make a fiction the instrument by which he is to be debarred of his rights is a very severe, if not excessive, exercise of authority, where the legislature had already put him quite sufficiently at disadvantage. Rules of evidence are subject to legislative control; and therefore the legislature may make the tax-deed evidence of title. Rules of limitation *Page 66 are also subject to its control, and therefore the statute may quiet an open and public exercise of a right which remains unchallenged; but a purely nominal and fictitious exercise of a right my means of the recording of a paper, or even without that, if the legislature shall think proper to dispense with it, is a very unsubstantial basis for a conclusive muniment of title to land. Constructive possession in any case, it would seem, should be in the party having the legal title; and this would leave questions of title open so long as actual possession was had by no one." (p. 2977, § 1513.)
We think it apparent that the authority of Cooley is not on the side of the plaintiff's contention.
Counsel for the plaintiff assert that as the result of our decision in this case "there is obviously no stability to tax titles in Oregon", and they argue:
"If such things as a misspelt name, an error in description, a small amount of excess costs, an inadequacy in price, or, as in this case, an error in the published summons, are going to render the proceeding void, and if the limitation statute does not apply to such defects, then clearly anyone purchasing at a tax sale does so at his peril."
The most recent decisions of this court in cases involving tax titles do not justify placing "an error in the published summons" — at least such an error as that found in this case — in the same category with "a small amount of excess costs", and perhaps with some of the other defects mentioned by counsel. We had supposed that the distinction was made sufficiently clear in National Surety Corporation v. Smith, supra, where it was held that "a small amount of excess costs" was a mere irregularity not affecting the jurisdiction of the court. The present decision goes no further than that the statute of limitations is not to be *Page 67 applied where the court rendering the decree acts without jurisdiction. That compliance with the statutory requirement of notice to be given the defendants through the published summons is essential to jurisdiction is, we think, beyond debate. That the prescribed notice was not given in this case is conceded. It was no different in law than if no notice whatever had been given and no summons attempted to be published. Notice and an opportunity to be heard are of the essence of due process, and we think that, under a proper interpretation of our statute, it should not be held that the legislature intended that a man who has received no notice that his property is about to be proceeded against should lose his title through the passage of time. The legislature has provided for the foreclosure of tax liens in judicial proceedings. It has ordained that the statute of limitations should commence to run "within three years after the date of the sale for taxes by the sheriff", § 69-845, Oregon Code 1930. We think that means a sale ordered by a court during the course of a proceeding in which it has acquired jurisdiction through publication of the summons prescribed by the statute, and that it does not mean a sale wholly unauthorized for want of jurisdiction. In our opinion, the event which the legislature has made the starting point for the running of the statute of limitations has in this case never occurred.
These views are not everywhere held; but we are not disposed, on a question so fundamental, to depart from a doctrine that has stood in this state for more than thirty years, has commended itself to a majority of the courts of the country, as well as to writers upon this subject of acknowledged authority, and is founded in reason and justice.
The petition for rehearing is denied. *Page 68