Hembree v. McFarland

• Decision Date: 12 November 1909
• Citation: 104 P. 837,55 Wash. 605
• Parties: HEMBREE v. McFARLAND et al.
• Court: Washington Supreme Court

104 P. 837

55 Wash. 605

HEMBREE v. McFARLAND et al.

Supreme Court of Washington

November 12, 1909

Department 2. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Action by Nancy J. Hembree against William McFarland and others. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

L. H Wheeler, for appellant.

Bausman & Kelleher, for respondents.

MOUNT J.

The appellant brought this action to recover possession of a certain lot of land, and to set aside a judgment and to remove the cloud thereof from the plaintiff's title. The trial court concluded that the plaintiff was guilty of laches, and was therefore estopped to claim the land, and entered a decree dismissing the plaintiff's complaint, and quieting title in the respondents. The plaintiff has appealed.

The facts are not disputed. It appears that the appellant is a nonresident of the state. In the year 1895 she acquired the lot in question and an adjoining lot in the city of Seattle. She paid no taxes on the lot in question. In the year 1900 the county treasurer issued to respondent Hannah McFarland a certificate of delinquency for taxes delinquent on the property for the years 1895-96. On February 14, 1901, Hannah McFarland brought an action to foreclose her certificate of delinquency. The only service attempted was by publication. This service was void. No appearance in the case was made by the defendants. Thereafter a default decree of foreclosure was entered. This decree recited that the notice and summons 'was regularly and duly served.' Thereafter, in July 1901, the property was sold under the decree of foreclosure, and was bid in by the plaintiff in that action. A treasurer's deed was subsequently issued to her, and she immediately took possession of the property, and after September, 1903, made improvements on the property to the value of $2,100. The lot in question at the time this action was begun was of the value of $1,100. At the time of the foreclosure the lot was of the value of about $100. Prior to bringing the action, the appellant tendered to respondents all taxes and interest paid by them. She did not know of the foreclosure or that the respondents had possession of her lot until the year 1906. She brought this action in September, 1907. It is conclusively shown in the case that the court had no jurisdiction to enter the decree in the tax foreclosure case. This court has repeatedly held that summons like the one here served is void, and confers no jurisdiction upon the court to render judgment. Gould v. White (Wash.) 103 P. 460. This point seems to be conceded. The trial court was of the opinion, however, that the appellant was guilty of laches, and for that reason could not maintain the action. This ruling was based upon the decision in the case of Stevens v. Doohen, 50 Wash. 145, 96 P. 1032. In that case we said: 'There are facts in the record which tend strongly to show laches, but we shall not consider these facts because we prefer to rest the decision of this case upon the validity of the judgment in the tax foreclosure proceeding.' The opinion shows that the value, the title, and the conditions of the property had materially changed. It is not stated what notice the appellants in that case had of such changes, but it is fair to presume, in view of the fact that they were residents of the state, that they stood by for several years and knew of these changes; while in the case at bar the appellant did not know that there was any attempted foreclosure or sale of her property until about one year prior to the time she brought this action. After she learned this fact, no material change in the value, title, or conditions of the property is shown to have taken place. We think, therefore, this case is not controlled by that case, and also that there is no laches shown except the mere failure to pay taxes, which, under the rule stated in Gould v. White, supra, is not sufficient.

It is argued by respondents that the judgment of the lower court should be affirmed upon two grounds, besides the one upon which the court rested the decision, viz.: (1) Because this...