Larson v. Murphy

• Decision Date: 09 January 1919
• Docket Number: 14499.
• Citation: 105 Wash. 36,177 P. 657
• Court: Washington Supreme Court
• Parties: LARSON v. MURPHY et ux.

177 P. 657

105 Wash. 36

LARSON v. MURPHY et ux.

No. 14499.

Supreme Court of Washington

January 9, 1919

Department 1.

Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by John E. Larson against L. E. Murphy and wife. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions to dismiss action.

Douglas & Schramm, of Seattle, for appellants.

Frank Oleson, Alfred C. Oleson, and O. L. Willett, all of Seattle for respondent.

MAIN C.J.

The purpose of this action was to cancel and set aside deeds to real estate which had been made as the result of the foreclosure of two certain tax certificates of delinquency. The trial resulted in a judgment as prayed for in the complaint. From this the defendants appeal.

The facts may be summarized as follows:

The property involved is two vacant and unimproved lots in the city of Seattle. These were acquired by one John E. Larson some time during the year 1905, and he either paid or caused the taxes to be paid thereon up to and including the year 1911. The taxes for the year 1912 were not paid. On or about June 1, 1914, delinquent tax certificates were obtained by one R. H. Coshun from the county treasurer covering the two lots who also paid the taxes for the subsequent years. In 1916 the holder of the delinquent tax certificates began actions to foreclose the same, and sought to obtain service by publication. In these proceedings judgment of foreclosure was taken by default, and in due time deeds issued and delivered to the holder of the certificates. Thereafter the property was transferred by quitclaim deed to one L. E. Murphy, who, together with his wife, are appellants in this action. As above stated, the trial court entered a judgment, canceling and setting aside the county deeds to Coshun, and also the quitclaim deed from Coshun to Murphy. Larson, the owner of the property, was at the time of the foreclosure of the certificates of delinquency a resident of the county in which the property was located and in which the actions were brought.

The controlling question as presented by the briefs seems to us to be whether the holder of the certificates of delinquency prior to resort to constructive service had exercised ordinary diligence in an endeavor to locate and serve the owner personally. The appellants' contention is that Larson could not be found by the exercise of such diligence and respondent makes the counter contention that he could have been found.

The procedure in each of the tax foreclosures was fair upon its face, and shows a compliance with the statute. For the purpose of this case we may accept it to be the rule that even though the procedure be fair upon its face and shows a compliance with the statute, yet if there was not the exercise of ordinary diligence in an endeavor to locate and personally serve a resident defendant, a tax title is vulnerable in a direct proceeding for that reason. Inquiry must be directed then as to what the record shows with reference to an endeavor to locate and personally serve the defendant in the tax foreclosure proceedings. The facts are not in dispute. The evidence shows that prior to resorting to substituted service the plaintiff in the tax foreclosure proceedings caused inquiry to be made by persons living in the vicinity where the property was located to ascertain where the owner of the property could be found. An endeavor was made to locate him through the Title Trust Company, and an investigation of the records in the office of the county treasurer. A letter was sent to John E. Larson addressed care of Anton E. Larson, 1420 Boylston avenue Seattle. This letter was returned unopened. The taxes for the year 1911 had been paid by Anton E. Larson, and the...