Investment Co. v. City of Tacoma

• Citation: 233 P. 287,132 Wash. 645
• Decision Date: 14 February 1925
• Docket Number: 19110.
• Parties: INVESTMENT CO. v. CITY OF TACOMA et al.
• Court: United States State Supreme Court of Washington

233 P. 287

132 Wash. 645

INVESTMENT CO. v. CITY OF TACOMA et al.

No. 19110.

Supreme Court of Washington

February 14, 1925

Department 1.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by the Investment Company against the City of Tacoma and others. Judgment for plaintiff, and defendant D. Phelps appeals. Affirmed.

F Campbell and Frank D. Nash, both of Tacoma, for appellant.

Poe Falknor, falknor & Emory, of Seattle, for respondent.

ASKREN J.

This is an action brought to foreclose the lien of certain bonds issued by the city of Tacoma in 1909 for the improvement of Tacoma avenue from South Seventeenth to South Twenty-Seventh street. Among others named as defendants in the action were Pierce county, and D. Phelps, agent. The complaint alleged that the defendant Phelps claimed some interest in the property against which foreclosure was sought, but alleged that any rights which he had were junior and inferior to those of the plaintiff. The defendant Phelps answered and set up as a defense that he was the owner of certain delinquent certificates of general taxes which accrued subsequently to the special assessment for which the bonds held by plaintiff were issued, and prayed that his lien be declared superior. The plaintiff demurred to the answer, and upon the demurrer being sustained by the superior court, the defendant elected not to plead further, and judgment was entered in favor of the plaintiff. At the time of offering formal proof it was agreed that the lien for general taxes held by Pierce county as the owner was superior to that of the plaintiff, and that the plaintiff's foreclosure would be subject to that right.

Plaintiff also offered evidence showing that it was the owner of the bonds in question, that the same were due and unpaid, that it had requested the city of Tacoma to bring an action to foreclose on the bonds, and that the city of Tacoma had refused to proceed.

It is the contention of the appellant that both of the parties are private holders of liens against the property, and that either party to the action must, in bringing its suit to foreclose under its lien, elect to foreclose subject to the rights of the other party, or pay the same before suit is brought. Section 9393, Rem. Comp. Stat., requires the holder of a certificate of delinquency for general taxes to pay in full all the local assessments outstanding against the property, or foreclose subject to them. In Seattle v Everett, 125 Wash. 39, 215 P. 337, this court held that the lien for special assessments was superior to the lien for general taxes where the lien for special assessments was held by the city and the lien for general taxes held by an individual, giving effect to the distinction that, while the lien for general taxes during the time it is held by the county is a superior lien to that of local assessments, yet when it has passed into the hands of a private party it loses its superior rank.

In Seattle v. Equitable Bond Co., 126 Wash. 111, 217 P. 721, the city of Seattle brought an action to foreclose on delinquent local assessments against certain property, and the defendant set up as a defense that it was the holder of general tax...