Rockwood v. Turner

• Decision Date: 20 January 1916
• Docket Number: 12787.
• Citation: 89 Wash. 356,154 P. 465
• Court: Washington Supreme Court
• Parties: ROCKWOOD v. TURNER.

154 P. 465

89 Wash. 356

ROCKWOOD v. TURNER.

No. 12787.

Supreme Court of Washington

January 20, 1916

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by Charles Rockwood against H. H. Turner. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded with instructions.

Cannon & Ferris and Peacock & Ludden, all of Spokane, for appellant.

Cordiner & Cordiner, of Spokane, for respondent.

HOLCOMB J.

The appellant in this action attacks the validity of a tax judgment and tax sale upon two grounds: First, because notice of foreclosure of the delinquency certificate was not served upon all persons who appeared upon the roll of the county treasurer as owners of the land for the years 1908 and 1909 and, second, because the proof of service of the published summons is defective.

1. Respondent first moves to strike certain parts of appellant's abstract of the record, and to dismiss the appeal, and to strike appellant's brief from the record, and affirm the judgment. The first of these motions is without merit, for the reason that the statement of facts in this case comprises but 37 pages, and there is no real necessity for an abstract of such a record. At any rate the abstract is sufficient without 'appropriate references by pages to the transcript or statement of facts' because of the brevity of the statement of facts and transcript. Respondent could not have been in any wise prejudiced or have suffered any hardship by the failure complained of. The same reasoning applies to respondent's motion to strike appellant's brief from the record, and it also is without merit. Both motions are denied.

2. Respondent also contends that appellant is estopped from appealing from the judgment entered by the superior court, for the reason that appellant moved for and obtained an amendment of the judgment that was first entered by the superior court, and is therefore bound by the amended judgment. It appears that the respondent included, in the judgment which was first signed by the court, a tract of land which he had no right to include in the judgment, and upon a showing thereof by appellant, the judgment was amended and corrected to exclude that tract. We have little patience with a contention by counsel based upon a proceeding necessitated by counsel for respondent's own wrong. Of course, appellant invited the amendment, but he had a right to insist that the court should not include any more of his land in a judgment in an action to quiet title against a tax foreclosure proceeding than was involved therein. Upon the showing made therefor, if the trial court had not in all fairness corrected the judgment as it did, it would have been a gross inequity and wrong, and this court would have corrected it if brought properly before us.

3. It is further contended by respondent that appellant did not prove that he had any interest in or to the land involved in this controversy; that the only evidence offered by appellant was parol evidence that he was the owner of the land; that respondent objected and excepted to the introduction of such evidence on the ground that parol evidence is incompetent to prove title to real estate. This contention also is not borne out by the record, since the statement of facts and abstract show that appellant offered the record of the county auditor's office of Spokane county showing the record of a deed from one Cushing and wife, dated March 31, 1902, recorded in Book 123 of Deeds at page 335, and including the land described in this proceeding, as shown by an abstract which he had in court, and read the same into the record; that respondent objected to the description of any other additional property than that described in this proceeding; that respondent made no other objection, but reserved the right to cross-examine plaintiff with the abstract which counsel for plaintiff had just used and which cross-examination he thereafter waived. He therefore waived the strict documentary evidence as shown by the deed record, and his contention is purely technical.

4. Upon appellant's first contention the facts are substantially these: The assessment roll of Spokane county for the year 1908 showed the owner of the lands described in appellant's complaint to be Charles Rockford. During that year Charles Rockwood was in fact the owner of the tract in question. The tax for that year was not paid. In 1909 the assessment roll showed that one May Mallette was the owner of the property involved. On July 18, 1910, a certificate of delinquency naming Charles Rockwood as owner covering the delinquent tax for 1908 upon the land was issued to one A. J. Cuttell. This certificate was for $69.05, and included the taxes due on the land for the year 1908, and also, as an easy method of bookkeeping, instead of issuing a separate receipt to the purchaser of the delinquency certificate for the tax on the land for the year 1909, the amount thereof (excepting for an error made by the treasurer) was added to and included in the certificate of delinquency for 1908, thus making the total of the certificate $69.05. The holder of the certificate continued to pay taxes thereafter until 1913. In July, 1913, the holder of the certificate began foreclosure proceedings in the superior court of Spokane county, and, upon a showing therefor, made or attempted to make service by publication of the summons therein, the summons being directed to 'Charles Rockford et al.' On October 17, 1913, the attorney for the certificate holder made a showing for default upon such published summons, the default was granted on October 20, 1913, and on the same day a judgment and decree of foreclosure of the tax delinquency certificate was made and entered by the superior court of Spokane county. An order of sale was issued thereon, and the land was subsequently sold to respondent. Appellant contends that the case is controlled by our decision in Radcliff v. Hughes, 82 Wash. 167, 143 P. 980. In that case we said:

'Section 9245, Rem. & Bal. Code, provides, that when a certificate of delinquency is foreclosed 'notice to the owner of the property described in such certificate' is necessary. Section 9257, Rem. & Bal. Code, * * * provides that 'the names of the person or persons appearing on the treasurer's rolls as the owner or owners of said property for the purpose of this chapter shall be considered and treated as the owner or owners of said property. * * *' The respondent claims that the words 'names of the person or persons appearing on the treasurer's rolls as the owner or owners,' means the names so appearing at the time of the commencement of the action to foreclose. * * * This is not now an open question in this state. The view has been announced and adhered to that the names of the person or persons appearing upon the treasurer's rolls as owner or owners means the person or persons appearing as such on the rolls when the certificate is issued and who are described in such certificate as the owner or owners. * * * 'The statute only requires notice to be given to the owner described in such certificate.''

But we think this case is against appellant's contention. It is true that the certificate of delinquency in this case issued in 1910,...