City of Tacoma v. Fletcher Realty Co.
Decision Date | 27 November 1928 |
Docket Number | 20925. |
Citation | 150 Wash. 33,272 P. 43 |
Parties | CITY OF TACOMA v. FLETCHER REALTY CO. et al. |
Court | Washington Supreme Court |
Appeal from Superior Court, Pierce County; E. M. Card, Judge.
On rehearing. Departmental opinion reversed, and judgment of trial court affirmed.
For former opinion, see 146 Wash. 671, 264 P. 997.
Carroll Hendron, of Seattle, for appellants.
E. K Murray, Leo Teats and Bartlett Rummell, all of Tacoma, for respondent.
Joining in brief as amici curiae:
Thomas J. L. Kennedy, Corp. Counsel, and Arthur Schramm, Asst. Corp. Counsel, for City of Seattle.
J. M Geraghty, Corp. Counsel, and Alex M. Winston, Asst. Corp. Counsel, for City of Spokane.
H. E. Donohoe, City Atty., of Chehalis.
Arthur McGuire, City Atty., of Ellensburg.
O Duncan Anderson, City Atty., of Everett.
Ben Driftmier, City Atty., of Anacortes.
W. C Bates, City Atty., of Vancouver.
James P. H. Callahan, City Atty., of Hoquiam.
Dolph Barnett, City Atty., of Yakima.
J. H. Secrest, City Atty., of Longview.
Charles B. Sampley, City Atty., of Bellingham.
E. E. Boner, City Atty., of Aberdeen.
J. E. Stone, City Atty., of Kelso.
O. M. Nelson, City Atty., of Montesano.
C. L. Holcomb, City Atty., of Kennewick.
Herman Murray, City Atty., of South Bend.
John Lynch, City Atty., of Olympia.
Thomas Stevenson, City Atty., of Bremerton.
Lewis & Church, City Attys., of Port Angeles.
J. H. Jahnke, City Atty., of Centralia.
R. V. Welts, City Atty., of Mt. Vernon.
This cause was heretofore heard by a department of this court and its opinion will be found in 146 Wash. 671, 264 P. 997. After the filing of the departmental opinion, a petition for a rehearing was filed and granted, and the cause was again argued before the court sitting en banc.
A majority of the court has now reached the conclusion that the departmental opinion cannot be sustained and that the judgment of the trial court must be affirmed.
The facts are not now in issue and need not be restated. The sole question is whether or not a purchaser at a general county tax foreclosure sale takes title freed from the liens of local assessments; the city, under whose authority such local assessment liens were created, having been made a party to the foreclosure proceeding.
We cheerfully accept without reservation that part of the departmental opinion which holds in accord with our prior decisions, and the statute, that general taxes are superior and paramount to all other liens and claims, including the lien of local assessments, but that only brings us to the threshold of the present question.
The Legislature, in the light of the early decisions of this court, which are cited in the departmental opinion, and to cure the situation which was pointed out by those decisions, enacted what is now Rem. Comp. Stat. § 9393, as we see it, for the purpose and the sole purpose of preventing and avoiding the extinguishment of the liens of local assessments until the very last moment. That section reads:
This statute was considered by this court in Maryland Realty Co. v. City of Tacoma, 121 Wash. 230, 209 P. 1, where it was said:
.
By the statute quoted and the construction given it, as shown, we are committed to the doctrine that the lien of local assessments must be preserved and maintained up to the point where to further preserve such a lien would cause a sacrifice on the part of the county and the state, or in other words, that, though the municipality which created the local assessment liens may be made a party to the statutory foreclosure suit, that is not done for the purpose of then immediately extinguishing the liens of the local assessments by foreclosure, but for the purpose of limiting those liens as the statute in terms provides, i. e.:
'In any case where any property shall be struck off to or bid in by the county at any sale for general taxes, and such property shall subsequently be sold by the county, the proceeds of such sale shall first be applied to discharge in full the lien or liens for general taxes for which the same was sold, and the remainder, or such portion thereof as may be necessary, shall be paid to the city to discharge all local assessment liens upon such property, and the surplus, if any, shall be distributed among the proper county funds.'
By the foreclosure, the city loses its own right to foreclose its local assessment liens and loses all control over the situation save only as it may have the right to acquire diligence on the part of the county to raise funds by a resale, and save as the fund so acquired by resale immediately by the language of the statute become subject, so far as it is in excess of the general tax, to the lien of the local assessment. Or, in other words, by the resale, the still unextinguished lien is by the statute transferred from the property to the fund acquired by its resale. Or, restated in still another way, by the act of 1911 the Legislature plainly provided and intended to provide that the local assessment liens should not be extinguished by the decree of foreclosure, and, if not extinguished by the decree, we can hardly hold that the bidding at the sale following the decree, by a private individual, can be given the effect of a judicial act which will cut off the lien which has existed up to that moment.
Taking the statute as a whole, the legislative intent is clearly discernible that a private person, whether he proceeds by the purchase of a certificate of delinquency and himself forecloses it, or becomes a purchaser at the county's sale, may in either event pay the local assessments or acquire title subject to them, but he has no other choice. There is no word in the statute to indicate that either course will enable him to defeat a lien superior to every other, except the general tax lien, and we know of no reason why a private purchaser can, or should, acquire greater rights as a purchaser at a county tax sale than the county itself can acquire. Surely if the county, which is acting for itself and the state in collecting the revenue required to maintain the general government, must still take the property charged with the duty to resell it if possible so as to pay both the general tax and the assessment, and that privilege is not extended to a private purchaser, he cannot take it freed entirely of the lien of the local assessment, but must either pay the lien or take subject to it.
But it is argued that we have held that by a tax sale a new title is initiated, and that a new title can only be initiated at the time of the entry of the decree of foreclosure when the parties are before the...
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