Burdick v. Kimball

• Decision Date: 15 May 1909
• Citation: Burdick v. Kimball, 53 Wash. 198, 101 P. 845 (Wash. 1909)
• Parties: BURDICK et al. v. KIMBALL et al.
• Court: Washington Supreme Court

101 P. 845

53 Wash. 198

BURDICK et al. v. KIMBALL et al.

Supreme Court of Washington

May 15, 1909

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by F. W. Burdick, trustee, and another against George W Kimball and others. A demurrer to the complaint was sustained, and the action dismissed, and plaintiffs appeal. Affirmed.

Todd Wilson & Thorgrimson, for appellants.

Frank S. Griffith and Morris B. Sachs, for respondents.

MOUNT J.

This action was brought to redeem certain real estate from a tax sale. The trial court sustained a demurrer to the complaint, and dismissed the action. Plaintiffs appeal.

The facts shown by the complaint are as follows: On June 30 1893, the father and mother of the minor, Bernhart Brant Bartels, deeded the property in controversy to one E. M Carr, in trust for the minor. The trust deed authorized the trustee to sell the property and convey an absolute title in fee, to change the form of the property at any time, and to invest the proceeds; 'it being the intention of the said parties of the first part to give full power to said trustee to deal with the said property as his own, and imposing full confidence in his honesty and discretion in relation to said trust.' This deed was duly recorded in King county, where the land is located. At the time the deed was made, taxes were due and unpaid for the years 1878 and 1893. Afterwards taxes were permitted to go delinquent for the years up to and including, 1896. In May of 1898 the treasurer of King county issued a certificate of delinquency to one F. W. Comstock for these delinquent taxes. In March, 1901, Mr. Comstock brought an action in the superior court of King county to foreclose a certificate of delinquency. Personal service of summons and complaint in that action was made upon the trustee in whose name the title stood. A judgment of foreclosure followed in due course, and the property was sold to Mr. Comstock, who afterwards deeded it to George W. Kimball. The minor, now nearly 16 years of age, brings this action by his guardian and trustee. He alleged a tender of the amount of taxes, penalty, and interest due. No question is made upon the regularity of the tax foreclosure proceedings. The lower court sustained the demurrer, upon the ground that the minor, not having inherited the property, was not authorized by the statute to redeem it from tax foreclosure sale. This is the only question presented.

The statute relating to the subject is as follows: 'If the real property of any minor heir, or any insane person, be sold for nonpayment of taxes or assessments, the same may be redeemed at any time after sale and before the expiration of one year after such disability has been removed upon the terms specified in this section,' etc. Laws 1899, p. 298, c. 141, § 17; Pierce's Code, § 8696. Appellants argue that the word 'heir,' as used in the statute, was used inadvertently by the Legislature, and should be excluded, so that the statute would apply to all minors; that the statute, being remedial in its nature should receive a liberal construction. We might readily agree to the last position, and also to the first, if we were satisfied that the word 'heir' had been used inadvertently, but 'when the meaning of a statute is clear, and its provisions are susceptible of but one interpretation, that sense must be accepted as the law. Its consequences, if evil, can only be avoided by change of the law itself, to be effected by the Legislature, and not by judicial construction.' Sutherland, Stat. Constr. § 238. In order to determine whether the word 'heir' was used inadvertently or not, it may be well to look to the history of this statute. In 1891 the Legislature of this state passed an act relating to the assessment and collection of taxes, and there provided: 'Minors, insane persons, idiots, or persons in captivity, or in any country with which the United States are at war, having an estate in or lien on lands sold for taxes, may redeem the same within two years after such disability shall cease.' Laws 1891, p. 321, c. 140, § 107. At the next session of the Legislature, in 1893, a new act relating to the same subject was passed, and prior acts were expressly repealed. Section 121, c. 124, p. 378, of this act provides: 'If the real property of any minor heir or insane persons be sold for nonpayment of taxes or assessments, the same may be redeemed at any time after sale and before the expiration of one year after such disability has been removed, upon the terms specified in this section,' etc. It will be noticed that in 1891 certain classes of persons might redeem, viz., minors, insane persons, idiots, persons in captivity, or persons in a foreign country at war with the United States. These persons were required to redeem within two years after the disability should cease. The act of 1893 changed this provision, by limiting the time to within one year after the removal of the disability, and also making it apply only to minor heirs and insane persons, excluding idiots and persons in captivity, and persons in a foreign country at war with the United States, from the benefit of the provision. This section has since been amended or re-enacted by Laws 1895, p. 523, c. 176, § 25, by Laws 1897, p. 184, c. 71, § 102, and also by Laws 1899, p. 298. But the provision under consideration has not been changed in substance...