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Mariah Investments9/22/1999
ight of redemption had expired. The Dissent overlooks the obvious limits of the statutory presumption, as well as the rationale underlying that presumption. First, Knapp explained that the ability to impute notice of tax liability stems from the fact that "taxes are collected periodically under fixed laws which, in a restricted sense, impart their own notice." Knapp, 192 Or at 341 (quoting Spitcaufsky v. Hatten, 353 Mo 94, 111, 182 SW2d 86 (1944)). Here, the Dissent would abandon that rationale by expanding Wright's imputed knowledge to cover not only her tax liability but also to the actions of third parties independently intervening after a foreclosure sale had concluded and after that sale could, statutorily, be disturbed. Such activities are far from periodic and thus do not "'impart their own notice.'" Id.
Second, the Oregon Supreme Court has recognized a fundamental difference between private litigation and tax foreclosure actions. Requirements to meet due process in tax foreclosure are less stringent because of the "'government's exigent need for * * * pecuniary support,'" the "'futility of impeding the annual collection of taxes,'" and the self-noticing nature of tax assessments. Id. at 341. Such considerations do not apply in private litigation, imposing higher obligations to provide adequate notice of litigation to meet the due process standard. Thus, the Supreme Court has noted a distinction in the application of imputed knowledge of tax obligations outside of the tax foreclosure context.
In sum, the Dissent overlooks the tax foreclosure statute's language that deems Wright to know only that taxes are assessed and owed on a property and furthers the goal of ensuring the stability of the county's title through foreclosure proceedings. Instead, the Dissent would impute knowledge of a third party redeeming title from the county after Wright's statutory right of redemption had expired and satisfying the tax obligation. It would do so to effect the sale of property without impediment to a private party at an artificially low price. Under the circumstances of this case and because I can find no public policy served by doing so, I would decline to extend that presumption here.
I, therefore, conclude that Wright was not grossly negligent where the negligence was exacerbated by the circumstances of the deal and shrewdly manipulated by McCabe. I would affirm the trial court's judgment because Wright's unilateral mistake of fact regarding the tax status of her property merits rescission of the sale. McCabe had no affirmative duty to provide Wright with information; however, the equities of the situation reveal that he risked rescission of the deed of sale where, superior in knowledge and sophistication, he knew or should have known that Wright was under a misapprehension of fact and nevertheless courted that misapprehension by his participation in the transaction.
Deits, C. J., and DeMuniz, Haselton and Armstrong, JJ., join in this concurrence.
LANDAU, J., Dissenting.
The concurrence would hold that Wright is entitled to rescind her agreement to sell her property for $5,000, because she mistakenly thought that taxes were owing and that foreclosure was imminent. The concurrence concludes that, although her failure to ascertain the tax status of her own property certainly was negligent, it was not so negligent as to prohibit rescission. In so concluding, the concurrence neglects to apply controlling precedent to the contrary and, in the process, would significantly expand the grounds for rescission of a contract. I Dissent.
I take the facts as reported by the concurrence. I therefore assume for the purposes of this opinion: (1) t
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