Egbers v. Fischer

• Decision Date: 01 May 1913
• Parties: EGBERS v. FISCHER et al.
• Court: Washington Supreme Court

131 P. 1128

73 Wash. 308

EGBERS v. FISCHER et al.

Supreme Court of Washington

May 1, 1913

Department 1. Appeal from Superior Court, King County; Geo. A Joiner Judge.

Action by Henry F. Egbers against Edward J. Fischer and another. From a judgment for plaintiff, defendants appeal. Affirmed.

S.D King, of Seattle, for appellants.

Lambuth & Rembert, of Seattle, for respondent.

GOSE J.

This is an action to foreclose a lien for taxes which the plaintiff claims to have paid in good faith, believing that he was the owner of the property upon which the taxes were assessed. A decree was entered in harmony with the bill. The defendants have appealed.

The appeal presents two questions, one of fact and one of law (1) Did the respondent pay the taxes in good faith, induced by a belief that he owned the property sought to be charged with the lien, and (2) is he estopped by a former judgment?

1. In respect to the first proposition, the respondent testified that he was by occupation a hotel keeper; that he had never dealt in lands; that he knew nothing about examining land titles; that he did not procure an abstract of title to the land nor have the title examined; that he believed that an administrator's deed submitted to him by his grantor, together with the deed of the grantor, conveyed him a good title; and that in faith of that title he paid the taxes. He further testified that he brought the property through a friend whom he had known for years, who told him, in effect, that he had some lots upon which he had paid taxes and upon which other taxes were due, which he would sell very cheap. Upon the faith of these statements and the administrator's deed which, while without the chain of title, is regular upon its face, respondent purchased the property. He says that before purchasing he examined the land; that there was an old moss-covered fence around it; but that apparently no one was living upon it, and there had been no recent cultivation. He found no one upon the premises at the time he examined it. We think the court correctly held that he paid the taxes in good faith. The argument made against his good faith is that he paid a small sum for the property, and that the administrator's deed was without the chain of title. We do not think he is concluded by these facts. The fact that he dealt carelessly does not necessarily impeach his good faith. It is not questioned that he paid the taxes.

2. After purchasing the property and paying the taxes involved in the suit, respondent with others commenced an action in the superior court of King county, alleging that he was the owner in fee of the land here sought to be charged with the taxes, and prayed that he be adjudged to be such owner and awarded possession thereof, and for general relief. The defendants in that action appeared and pleaded title by prescription. At the close of the plaintiff's case, the defendants therein moved for 'an order of nonsuit and for the dismissal of the action,' upon the ground that the plaintiff had failed to prove title or right to possession. This motion was sustained and 'judgment and decree of dismissal' was entered. It is alleged here that the decree 'was and is upon the merits.' We will assume as the parties have assumed, that this was a judgment upon the merits. It does not, however, present the question of res judicata or estoppel by record. The respondent here, the plaintiff in that action,...