Baylis v. Kerrick

• Citation: 116 P. 1082,64 Wash. 410
• Parties: BAYLIS et ux. v. KERRICK et ux.
• Decision Date: 03 August 1911
• Court: United States State Supreme Court of Washington

116 P. 1082

64 Wash. 410

BAYLIS et ux. v. KERRICK et ux.

Supreme Court of Washington

August 3, 1911

Department 2. Appeal from Superior Court, Island County; Lester Still Judge.

Action by H. R. Baylis and wife against H. S.Kerrick and wife. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Charles R. Crouch, for appellants.

James Zylstra, for respondents.

CROW J.

This action was commenced on January 24, 1910, by H. R. Baylis and wife against H. S. Kerrick and wife, to quiet title to 40 acres of land in Island county. The defendants denied plaintiffs' alleged title and ownership, and for affirmative answer alleged that on April 19, 1902, the treasurer of Island county executed and delivered to Island county a tax deed regular in form for the 40 acres and other lands, in pursuance of general tax foreclosure proceedings that on February 25, 1903, Island county, by its treasurer sold and conveyed the 40 acres to defendant H. S. Kerrick who has since been owner of the fee-simple title, entitled to possession, and has paid all taxes for the years 1903 to 1908, inclusive; that prior to the commencement of this action plaintiffs had notice of defendants' claim and title; that their action is in effect one to set aside and cancel a tax deed; and that it was not commenced within the time limited by law. From a judgment of dismissal the plaintiffs have appealed.

The trial judge entered the order of dismissal on the sole theory that this is an action to set aside and cancel a tax deed and is barred by the statute of limitations. Section 162, Rem. & Bal. Code. Appellants contend the foreclosure upon which the tax sale and deed are predicated is absolutely void as to the land here involved, in that its description was not included in the summons, the claim for judgment, or the judgment itself. The tax deed is regular in form, describes the land, was executed some eight years prior to the commencement of this action, was recorded two days after its execution, and purports to convey to the county a tax title for the 40-acre tract and other lands. No substantial dispute is made upon the facts. The vital question presented is whether, at any time after the statute has run as against the tax deed, a former owner may indirectly attack and avoid the deed by questioning the regularity and validity of the foreclosure proceedings, the deed itself being regular in form. This question has been determined in respondent's favor by this court in Huber v. Brown, 57 Wash. 654, 107 P. 850, where we said: 'The point is made that the published summons and the affidavit upon which it is based are so defective that the court did not acquire jurisdiction, and that the judgment is therefore void, and that a tax deed based upon a void judgment is not within the protection of the statute. This is no longer an open question in this state. A like question was made in Hamilton v. Witner, 50 Wash. 689, 97 P. 1084, 126 Am. St. Rep. 921, and in Lara v. Sandell, 52 Wash. 53, 100 P. 166. In the Lara Case we said: 'Whatever the rule may be in other jurisdictions, it is firmly established in this state that a void tax deed may constitute a sufficient basis for the running of the statute of limitations.' In these cases the court was considering the seven-year statute of limitations, but we do not conceive that a different principle should obtain in applying the provisions of the act of 1907, which is special to tax deeds and general in its...