Chase v. Carney

• Decision Date: 09 May 1939
• Docket Number: 27297.
• Citation: 199 Wash. 99,90 P.2d 286
• Parties: CHASE et al. v. CARNEY et al.
• Court: Washington Supreme Court

90 P.2d 286

199 Wash. 99

CHASE et al. v. CARNEY et al.

No. 27297.

Supreme Court of Washington

May 9, 1939

Department 1.

Action by C. E. Chase and wife against Elvin P. Carney and others to set aside a sheriff's deed and quiet title to property covered thereby. From a judgment dismissing the complaint and quieting title in defendant Elvin P. Carney, the plaintiffs appeal.

Affirmed.

Appeal from Superior Court, King County; Robert M Jones, judge.

Kellogg Walters & Pedersen, of Seattle, for appellants.

Dillon & Carney, of Seattle, for respondents.

MAIN Justice.

The purpose of this action was to set aside a sheriff's deed and quiet title to the property covered thereby in the plaintiffs. The trial was to the court without a jury, and resulted in findings of fact from which it was concluded that the plaintiffs were not entitled to the relief which they sought, and from the judgment entered dismissing the complaint and quieting the title in the defendant Elvin P Carney, the plaintiffs appealed.

The preliminary facts may be summarized as follows: In 1922 Water District No. 7, in King county, was organized. Within the district there was created a local improvement district. For the purpose of paying for the cost of the improvements, bonds were issued. These were to be paid by assessments upon the property benefited, in annual installments. One Eva G. Leavenworth became the owner of one or more of the bonds. September 11, 1930, J. D. Peters and Johanna M. Peters, his wife, being then the owners of the property here in question, mortgaged the same to C. E. Chase. In 1935, the local improvement district assessments having become delinquent, an action to foreclose was brought by the above mentioned owner of one or more of the bonds. This action proceeded to final decree and sale, at which the property was purchased by Elvin P. Carney, and, on the 8th day of March, 1937, he received a sheriff's deed for the same. It is this deed that the plaintiffs sought to have set aside in this action, with the result as above stated.

Other facts will be mentioned in connection with the particular contentions to which they may be immediately applicable.

It is first contended that the bonds issued by the improvement district were void because the water district was organized under an unconstitutional law (Chapter 161, p. 533, Laws 1913). It is true that, in the case of Drum v. University Place Water District, 144 Wash. 585, 258 P. 505, that law was held not to be constitutional. But it does not follow from this that the appellants, at the time they brought their action, were in a position to assail the validity of the bonds, because, prior to the time the mortgage was given by Mr. and Mrs. Peters, in which Mr. Chase was named as mortgagee, assessments had been paid by the owners prior to the time that the Peters acquired the property, and one assessment had been paid by them after they acquired it.

In principle, this case is no different than the case of Desimone v. Shields, 152 Wash. 353, 277 P. 829, where it was held that those seeking to have the organization of a water district held void were not in a position to maintain the action because they had waived that right and placed themselves in a position where, in equity, they would not be heard to complain. It is true that there were more acts performed there constituting the waiver than the payment of assessments. It is not the number of the acts that are done which constitutes the waiver but whether substantial things were done in that respect, and, in the Desimone case, the payment of assessments was one of the things that constituted the waiver. We think this case is controlled by the holding in that case.

It is next contended that the bond foreclosure action was ineffectual because Viola E. Chase, the wife of C. E. Chase, was not made a party. In this connection, attention is called to the rule that all property acquired during coverture is presumed to be community property and the wife has an equal interest therein with her husband. Whether that rule be applicable would depend upon whether Mr. and Mrs. Chase were married at the time the mortgage was made to Mr. Chase. There is no evidence as to when the Chases were married, and it would seem that there would not be a presumption that they were married at any particular time. The date of the marriage was a fact to be established by evidence. The appellants asserting the invalidity of the deed given to Carney, the burden was upon them to overcome the deed by competent and controlling evidence. Sparks v. Standard Lumber Co., 92 Wash. 584, 159 P. 812; Larson v. Murphy, 105 Wash. 36, 177 P. 657. The time of the marriage not having been established, the presumption that property acquired during coverture is community property has no application. Whether, if it had been shown that the mortgage, at the time it was given, was community property, that fact would have had any effect upon the validity of the service, is a question which we pass without discussion or decision.

The next contention is that the affidavit which furnished the basis for the publication of summons was not sufficient. Service was had in the bond foreclosure action upon a number of the defendants, including Mr. Chase, by publication. The person making the affidavit for publication made no investigation or inquiry as to the residence of Mr. Chase but the information that he was not a resident of King county was furnished him by another...