On Petition for Rehearing
Before Lusk, Chief Justice, and Brand, Belt,* Rossman, and Latourette, Justices.Petition denied.
BRAND, J.By a petition for rehearing the plaintiffs ask us to reconsider the portion of our former opinion wherein we held that the evidence does not support the allegations of adverse possession. Upon reexamination of the evidence we adhere to our former opinion upon that issue. This disposes of all assignments except the third which reads as follows:
“The court erred in concluding that the plaintiffs do not rely on the tax deed obtained from Grant County and in stating that they could not because of the decision in Elliott v. Clement, 175 Or. 44, because Elliott v. Clement determined only the issues as to the land involved in that case. There is no showing in this record that jurisdiction was not obtained over Harter, defendant’s predecessor.”
*659Although substantially the entire case was based upon the plaintiffs’ claim of title by adverse possession, it is nevertheless true that they did also assert that they were entitled to a decree quieting title by virtue of the fact that they were in possession of a sheriff’s deed, valid on its face, and that such deed constituted prima facie evidence of title. Among the exhibits in the case there are two deeds. In the first, the sheriff of Grant county deeds to the county the land involved in the pending case. It is dated 2 November 1935. The deed recites that there was a “public sale of real estate held on the 2nd day of November A. D. 1935”, pursuant to a real estate tax judgment and decree made and entered on the 21st day of October, 1935. It also recites that the land sold was formerly owned by A. J. Harter. The second deed, and the only one introduced by the plaintiff, is dated the 3rd day of January, 1944, and recites that the county of Grant acquired certain pieces of property by means of tax sales. There is no identification in the deed of the tax sale involved. The grantor is the sheriff of Grant county and the grantees are Keerins Brothers, the plaintiffs. The two deeds are the sole support for the plaintiffs’ claim that they acquired a tax title to the premises in question. When the first deed was given to the county, O. C. § 69-828 was in effect. It provided, in substance, that sheriffs’ deeds are prima facie evidence of title. It was repealed by the laws of 1939, Chapter 485. Plaintiffs also claim that the deed from the county to them is prima facie evidence of title by reason of O. C. L. A., § 2-407, which establishes a disputable presumption that official duty has been regularly performed. It was stipulated that A. J. Harter and wife were the owners of the land in question at the *660time of the institution of a tax foreclosure suit entitled ‘‘Grant County v. Arnold”; that the lands which are involved in the pending suit were included in that foreclosure suit; that Harter was named a defendant in the foreclosure suit and that the foreclosure suit “purported to foreclose the tax lien against the land involved in this case.” The plaintiffs’ deed is valid only if the circuit court had jurisdiction in the case of Grant County v. Arnold to decree the foreclosure of taxes against the lands of Harter. In the pending case the defendant Mauney introduced a certified copy of the original summons in the case of Grant County v. Arnold. The summons shows upon its face that it was fatally defective. In Elliott v. Clement et al., 175 Or. 44, 149 P. 2d 985, 151 P. 2d 739, this court considered the summons in Grant County v. Arnold and held that the court was without • jurisdiction to enter a decree and that the sale pursuant to the decree was void.
Assuming that .the plaintiffs’ deed constituted prima facie evidence of title, our question is, whether such prima facie evidence has been overcome. The suit to foreclose taxes was a proceeding in rem. In Elliott v. Clement, supra, this court said that the .purpose of the legislature was:
“to point out clearly that in all foreclosures by a county the summons shall be served by publication, and the person appearing on the latest tax-roll shall be the defendant, and the proceedings shall be deemed in rem.”
There is every reason to assume that the summons was served and the notice given exclusively by publication in one general notice as was provided in Oregon Code 1930, § 69-816. Since that notice was of no effect, it is reasonable to infer that Harter received' no notice.
*661 The parties stipulated to a chain of title from the United States by mesne conveyances to A. J. Harter and wife, and from them to the defendant Mauney. The plaintiffs had the burden of proving that they acquired title through a tax foreclosure and subsequent conveyances to themselves. At the time of trial in the pending case, they knew that the proceedings based on the published summons were void and that the foreclosure decree could not have deprived Harter of his title unless by some strange and unusual procedure for which the statute made no provision, the county officials had served personal notice on Harter, or Harter had voluntarily entered a general appearance in answer to a void summons. The prima facie effect of a sheriff’s deed in tax foreclosure proceedings based on publication of summons was, in our opinion, overcome when it appeared that Harter had good record title from the United States and that the publication of summons in the tax foreclosure was void. If the plaintiffs desired to show that A. J. Harter entered a general appearance in answer to a void summons, and if such had been the fact, they could have introduced the record showing such general appearance. Under the peculiar facts of this case, we hold that the plaintiffs, in relying solely upon the deed from the sheriff, have .failed to sustain the burden of proof of title through tax foreclosure. The petition for rehearing is denied.