Halvorsen v. Pacific County

• Citation: 156 P.2d 907,22 Wn.2d 532
• Decision Date: 07 March 1945
• Docket Number: 29465.
• Parties: HALVORSEN et ux. v. PACIFIC COUNTY et al.
• Court: Washington Supreme Court

156 P.2d 907

22 Wn.2d 532

HALVORSEN et ux. v. PACIFIC COUNTY et al.

No. 29465.

Supreme Court of Washington

March 7, 1945

Department 1.

Action by M. E. Halvorsen and Gina Halvorsen, husband and wife against Pacific County, a municipal corporation, and the State of Washington to establish title to certain land. From a decree that the State of Washington is the owner of the land, plaintiffs appeal.

Decree affirmed and cause remanded for amendment of decree.

Appeal from Superior Court, Pacific County; John I. O'Phelan, judge.

Fred M Bond, of South Bend, for appellants.

Smith Troy and R. A. Moen, both of Olympia, and John T. Welsh, of South Bend, for respondents.

GRADY Justice.

This action was brought by M. E. Halvorsen and Gina Halvorsen husband and wife, against the county of Pacific and the state of Washington to secure a decree to the effect that they were the owners in fee simple of the land described in their complaint, and that neither of the defendants had any right, title, or interest in or to the property. The defendants answered separately, the state of Washington praying that it be adjudged that it was the owner of the land in fee simple and that none of the other parties to the action had any right, title, or interest therein. Pacific county in its answer prayed that the action be dismissed.

The trial of the action resulted in a decree declaring that since January 17, 1918, the state of Washington was the owner of the land. It was also decreed that Pacific county had no lien thereon for taxes. The plaintiffs have taken an appeal from the decree.

The factual situation as disclosed by the record is as follows:

The tract of land involved contained 24.88 acres and was a part of the tide lands acquired by the state of Washington on admission to statehood. On December 22, 1896, the state entered into a written contract with John Walkowsky for the sale of the land to him. The contract was made pursuant to chapter 24 of the Laws of 1895, Rem.Rev.Stat. § 8040 et seq., commonly known as the Bush Oyster Act. (This act was repealed by chapter 47 of the Laws of 1935 with a saving clause.)

By virtue of § 26 of chapter CXXIV, Laws of 1893 (repealed by chapter 130 Laws of 1925, Ex.Sess., p. 227), the land became subject to taxation as the property of the vendee. On March 9, 1899, the state of Washington executed and delivered to Walkowsky a deed conveying the property to him.

On January 17, 1918, Walkowsky executed and delivered to the state a document entitled 'Certificate of Abandonment of Tide Lands Purchased from the State of Washington for Oyster Cultivation' by which he certified that he was in possession of the land described therein; that the same had become unfit and valueless for the purpose of oyster planting, and that he had abandoned all claim to the land to the state of Washington and made the certificate for the purpose of determining the land unfit and valueless for oyster planting and as a certificate of abandonment required under the provisions of chapter 24 of the Laws of 1895. The certificate of abandonment was filed in the office of the auditor of Pacific county January 17, 1918, and was recorded in the office of the state land commissioner January 24, 1918.

At the time of entering into the contract and until May 16, 1918, Walkowsky was a married man and his wife was Kate Walkowsky. Mrs. Walkowsky was not mentioned or referred to in either the contract or the deed, and she did not join her husband in the execution of the certificate of abandonment. On May 16, 1918, a decree was entered by the superior court for Pacific county whereby John Walkowsky and Kate Walkowsky were divorced. The property involved in this case was not referred to in the divorce proceedings. The court awarded certain real and personal property to John Walkowsky and certain personal property to Kate Walkowsky and then awarded him any other community real estate situated in the county of Pacific that stood in his name, as his sole and separate property.

The record is not clear as to just when Pacific county commenced to levy taxes upon the property, but it may be inferred that it did so immediately after the contract to sell was made on December 22, 1896. There is evidence that taxes were levied for the year 1913 and subsequent years. Walkowsky did not pay any of the taxes and none were paid subsequent to the execution of the certificate of abandonment.

In the year 1930, Pacific county instituted a proceeding to foreclose a tax lien upon this property, and, pursuant to a decree of foreclosure and public sale thereof, a deed was given to the appellant Halvorsen. This deed was lost and on August 13, 1942, the treasurer of Pacific county gave appellant Halvorsen another one.

The appellants base their claim of title to the land upon the deed from the state of Washington to Walkowsky and assert that it conveyed an estate in fee, or, at least, an estate in fee subject to be defeated by the happening of a condition subsequent; that the land became the community property of Walkowsky and wife and that the certificate of abandonment, not having been executed by Kate Walkowsky, was void and of no force and effect; that the land continued to be the community property of Walkowsky and wife and subject to taxation by Pacific county; that the deed executed by Pacific county to the appellants by virtue of valid tax foreclosure proceedings, vested a fee simple title in them, and that the respondents were estopped by their subsequent course of conduct to claim or assert any title to the property.

The respondents claim that, as the property was purchased from the state of Washington by Walkowsky for the limited use of oyster planting, and the title thereto could be reclaimed by the state whenever it ceased to be fit or valuable for oyster planting, or Walkowsky failed to use it for such a purpose, the certificate of abandonment executed as provided by statute caused what title he had to the property to revert to the state, and that it was not necessary, in order to make his action valid, that his wife join in the execution of such certificate. The state of Washington further contends that, when the title to the property reverted to the state, not only the taxes levied upon the property prior thereto, but all subsequent taxes became void, and that the appellant acquired no title by virtue of the tax foreclosure proceedings.

In support of their claim that the deed from the state conveyed to Walkowsky an estate in fee, the appellants cite Palmer v. Peterson, 56 Wash. 74, 105 P. 179. We do not think that this case warrants such an interpretation. The action was one to restrain a trespass. It was claimed that as the land involved was covered by water to a depth of seven or eight feet at high tide there existed the right to pass over it by other, but it was decided that as the deed from the state was absolute in form it carried with it the right to the exclusive possession and enjoyment of the land granted. The court did not determine the kind of title the owner possessed.

The purchase of the land by Walkowsky was made pursuant to chapter 24 of the Laws of 1895, and § 9 thereof was as follows:

'If from any cause any tract or tracts, parcel or parcels of land purchased under the provisions of this act shall become unfit and valueless for the purposes of oyster planting, the party having so purchased and being in the possession of the same may upon certifying such fact under oath to the commissioner of public lands and to the auditor of the county wherein such lands are situated and also upon filing under oath a certificate of abandonment of such tract or tracts, parcel or parcels of land, in the office of each of said officials, such party shall then be entitled to again make purchase as hereinBefore provided; or if said land be used by the purchasers or any successors in interest of such purchaser in whole or in part for other than the purposes specified in this act, then upon application by any citizen to the state land commissioner such sale may be canceled, and the said land shall revert to the state and shall be subject to sale as herein provided, but not to such defaulting purchaser or such defaulting successor in interest.'

These provisions of the statute were made a part of the deed from the state to Walkowsky, and in addition thereto the deed contained the following: '* * * and such certificate shall be and be deemed to be a reconveyance to the state of Washington and the lands therein described as having become unfit and valueless for the purposes of oyster planting.'

The precise nature of the title to oyster land acquired pursuant to chapters 24 and 25 of the Laws of 1895 has not been definitely determined. The cases of Scott v. Olympia Oyster Co., 63 Wash. 364, 115 P. 737, and Hurley v. Olympia Oyster Co., 105 Wash. 244, 177 P. 732, discussed such a title to some extent, but the court did not define it.

The general rule is that a deed which conveys an estate in fee simple, but provides for a forfeiture or reversion upon the happening of some event or condition, creates an estate in fee simple subject to a condition subsequent. Mouat v. Seattle, Lake Shore & Eastern Railway Co., 16 Wash. 84, 47 P. 233; Aumiller v. Dash, 51 Wash. 520, 99 P. 583; Restatement of the Law of Property, Vol. 1, p. 133, § 45.

The holder of such an estate has all the rights in respect to it of a fee simple owner until the condition subsequent has happened. Title is not divested automatically upon the happening of the event or condition, but some affirmative action on the part of the grantor or his successors is necessary to bring about a forfeiture or reversion of the estate, and this is true even though the conveyance...