The published summons did not comply with the requirement of the statute. The Supreme Court of Washington, after whose laws our statute is patterned ( Hoskins v. Dwight, 69 Or. 558, 565, 139 P. 922; Getchell v. Walker, 129 Or. 602, 278 P. 93; see specially concurring opinion of Mr. Justice ROSSMAN in National Surety Corporation v. Smith, 168 Or. 265, 325, 114 P.2d 118, 123 P.2d 203), in several decisions rendered before this state's adoption of the statute, held "that a tax foreclosure summons which does not conform to existing law in the important feature of fixing the time within which a defendant shall appear is so fatally defective that it confers no jurisdiction to enter a judgment, and that a judgment entered thereon is void." Woodham v. Anderson, 32 Wn. 500, 73 P. 536 (1903).
"The name of the person appearing on the latest tax roll in the hands of the tax collector at the date of the first publication of such notice, as the owner of any property therein described, shall be considered and treated as the owner of said property, and each such proceeding shall be a proceeding in rem against the property itself." These tax foreclosure laws were patterned after the laws of the State of Washington. Getchell v. Walker, 129 Or. 602, 278 P. 93; National Surety Corporation v. Smith, 168 Or. 265, 325, 114 P.2d 118, 123 P.2d 203. These statutes, as taken from the Washington Code, were initially enacted by the Oregon Legislature in 1907, Chapter 267. Decisions of the Supreme Court on the summary method of sale which was in vogue prior to 1907 are of no benefit under the statutes here in question. Under ordinary circumstances, when the statute of another state has been incorporated in the laws of Oregon, the interpretation placed on the enactment by the court of last resort of the state from which the law was taken and made before its adoption in this state governs the construction to be placed on it in Oregon.
The land involved in Elliott v. Clement, supra, was and at all times had been vacant and unoccupied and it was there stated that the foregoing statute did not apply, and that "* * * Nothing in the case of National Surety Corporation v. Smith, supra, [ 168 Or. 265, 114 P.2d 118, 123 P.2d 203] conflicts with this view. We there held that where the defect in the proceedings was a mere irregularity, and the court had jurisdiction to render the decree of foreclosure, the statute of limitations was available as a defense to the suit of the former owner. It so happened that the purchaser was in possession of the land, but the question whether possession was necessary to start the statute running was left open. Nothing, either in the opinion of the majority or in the specially concurring opinion of Mr. Justice Rossman, lends countenance to the view that the mere running of time could be effectual to deprive the owner of his property, in the case of a void decree of foreclosure and a void sale. Indeed, the original opinion in the case, which proceeded upon the theory that the sale was void, expressly held that the statute of limitations was not applicable.
The doctrine of Hatcher v. Briggs appears to go beyond the rule as set forth in the Restatement in that the Hatcher case would permit restitution to the occupier in cases where the equitable maxim that he who seeks equity must do equity does not apply. While we have no inclination to weaken the authority of that case, we think it is unnecessary to apply it in the case at bar. Here jurisdiction of equity was invoked by the owner. If it be urged that equity was without jurisdiction to remove a cloud because the tract was in the actual possession of the defendant Probert at the time suit was brought ( O'Hara v. Parker, 27 Or. 156, 39 P. 1004; National Surety Corporation v. Smith, 168 Or. 265 and 266, 114 P.2d 118, 123 P.2d 203), the answer is that defendants, by also seeking equitable relief, waived any objection to the jurisdiction of the chancellor and conferred jurisdiction upon the court to render complete, equitable relief. Oldenburg v. Claggett, 142 Or. 238, 20 P.2d 234; Carroll v. McLaren, 60 Or. 233, 118 P. 1034; O'Hara v. Parker, supra. The case, therefore, falls within the majority rule and the plaintiff, if he is to receive the aid of equity in removing the cloud from his title, must make suitable restitution to the defendant on account of improvements made.
Sheriff's certificates of sale are certainly transferable. See ORS 93.530 (requires all sheriffs’ certificates of sale to be executed, acknowledged, and recorded in the same manner as deeds of real property); National Surety Corp. v. Smith , 168 Or. 265, 268, 114 P.2d 118 (1941), aff'd on reh'g , 168 Or. 265, 123 P.2d 203 (1942) (assignee of sheriff's certificate of sale received sheriff's deed). Plaintiff asserts that the legislature intended the statutory redemption process to prevent the kind of conduct alleged here.
The same rule is applicable to the adoption of the wording of a statute of another state. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); National Surety Corp. v. Smith, 168 Or. 265, 324, 114 P.2d 118, 123 P.2d 203, 204 (1942). While the definition of the phrase was expanded by comment nine to Section 1-201, UCC, to make clear the type of persons protected, we must keep in mind that the UCC was not compiled until June 1, 1962, while the UTRA was published in 1933.
The same rule is applicable to the adoption of the wording of a statute of another state. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Palakiko v. Harper, 209 F.2d 75 (9 Cir. 1954) cert. den. 347 U.S. 956, 74 S.Ct. 683, 98 L.Ed. 1101, re-hearing denied 347 U.S. 979, 74 S.Ct. 789, 98 L.Ed. 1118; Peer v. Claremont (D.C.Or. 1960), 188 F. Supp. 641; National Surety Corp. v. Smith, 168 Or. 265, 324, 114 P.2d 118, 123 P.2d 203, 204. The interpretation placed upon the law of another state by courts of that state, prior to adoption of such a law by the Oregon Legislature, governs the construction to be placed on it in Oregon.
See also, Hughes v. Aetna Casualty Surety Co., 76 Or Adv Sh 847, 383 P.2d 55 (1963). Lane County v. Bristow, 179 Or. 653, 173 P.2d 954 (1946); Frederick v. Douglas County, 176 Or. 54, 155 P.2d 925 (1945); National Surety Corp. v. Smith, 168 Or. 265, 114 P.2d 118, 123 P.2d 203 (1942). We must decide, therefore, whether the foreclosure decree relied upon by the defendant county was void and, therefore, subject to collateral attack.
The interpretation placed upon the Washington law by the Washington court prior to Oregon's adoption of the law either governs the construction to be placed on it in Oregon or is highly persuasive. Elliott v. Clement, 175 Or. 44, 50, 149 P.2d 985, 151 P.2d 739 (1944); National Surety Corp. v. Smith, 168 Or. 265, 324, 114 P.2d 118, 123 P.2d 203 (1942). However, the Washington court, both before and after 1917, has varied in the degree of compliance with the statutory notice provision which it required.
' A judgment under our judicial procedure is accorded a finality that does not follow the summary foreclosure where a ministerial officer is exercising purely administrative powers. "The specially concurring opinion in National Surety Corp. v. Smith, 168 Or. 265, 315, 114 P.2d 118, 123 P.2d 203, 221, contrasts the summary procedure by administrative officers with our present judicial procedure and at page 332 of this report sounds a warning against judicial construction that might vitiate the procedure: "`The purpose of the 1907 act was to bring about a new course of procedure. It was a new beginning and presented 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.