Roger v. Whitham

• Decision Date: 04 December 1909
• Parties: ROGER et ux. v. WHITHAM et ux.
• Court: Washington Supreme Court

105 P. 628

56 Wash. 190

ROGER et ux. v. WHITHAM et ux.

Supreme Court of Washington

December 4, 1909

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by Auguste Roger and wife against John W. Whitham and others. From a judgment for plaintiffs, defendants John W. Whitham and wife appeal. Affirmed.

Charles R. Crouch, for appellants.

Todd Wilson & Thorgrimson, for respondents.

CHADWICK J.

On the 9th day of December, 1902, plaintiffs acquired the fee-simple title to lot 33, block 74, Gilman Park, now a part of the city of Seattle, but at all the times hereinafter mentioned a part of the city of Ballard, in King county. In December, 1902, the city council of the city of Ballard passed an ordinance declaring its intention to construct a sewer on Ballard avenue, and such subsequent proceedings were had that an assessment of $56.90 was levied against the property. The ordinance provided that all assessments should be paid in one payment, and within a limited time, to the treasurer of the city of Ballard. The assessment against lot 33 not having been paid within the time fixed as the date of delinquency, the council directed the city attorney, the defendant John W. Whitham, whom we shall hereafter refer to as defendant or appellant, to bring a suit to foreclose its lien. Service was had by publication, but no copy of the summons or complaint was ever served on plaintiffs, who were at the time, and for several years before that time had been residing in Paris, France. Judgment was taken, and on the 12th day of November, 1904, the property was bid in by defendant in the name of one E. B. Bodwell, for the sum of $111.32, that being the amount of the assessment, penalties interest, and costs. Defendant paid out his own money, intending to acquire title to the property. On December 9th following, Bodwell made a deed to defendant without consideration. The general taxes had been paid by plaintiffs up to and including the year 1904. In April, 1906, plaintiffs forwarded money through their agent, then residing in San Francisco, to pay the 1905 taxes then due, but the money was returned. After a due season of correspondence, plaintiffs learned that the property was claimed by defendant. About this time defendant discovered that the sale had not been confirmed; whereupon he attended to that detail, and had the sheriff execute another deed to Bodwell, who in turn deeded the property to defendant. The property at the time it was first sold was worth $3,000, and is now of increased value. Plaintiffs employed an attorney in the spring of 1907. This action was begun on July 21, 1908, after a tender of $1,000 to cover all taxes and assessments which had been levied upon the property had been refused. There was no suggestion of the lien of the assessment on the county tax rolls. Other pertinent facts will be noticed in our discussion of the law of the case. The trial resulted in a decree in favor of plaintiffs, and defendant has appealed.

Respondents base their claim to reassert title to their property upon two principal grounds--the one that the assessment was made under the law of 1901 (Laws 1901, p. 240, c. 118) whereas the law of 1891 (Laws 1891, p. 406, c. 160) should have been followed, and for that reason no lien was created; the other that appellant, in abuse of his trust as city attorney bought the property at a grossly inadequate price, without exercising due diligence or making such inquiry as might have led to a discovery of the post office address of respondents, thus insuring notice of the pending suit. The defenses set up are: The validity of the foreclosure proceeding; that respondents are expatriated citizens; that this is a collateral attack upon the judgment; that the action was not begun within the time limited by law; and that respondents have been guilty of laches. Without discussing the statutes of 1891 and 1901, we think the judgment of the lower court must be sustained upon the second ground urged by respondents. It is the duty of an attorney, and that duty will be laid with heavy hand upon a public officer who becomes a purchaser at a sale conducted by him for the public benefit, to exercise due care, and to pursue such sources of inquiry as are open to him, and which may lead to the means of giving notice to the citizen whose property is about to be charged. Appellant cites the rule that any person can purchase at a judicial sale who has no duty to perform in reference thereto, inconsistent with the character of a purchaser. But in this case appellant was confronted with a twofold duty--a duty to the city and a duty to the owner. If the duty is violated, the sale may be avoided at the suit of the party injured. While it is a primary rule that mere inadequacy of price, unless so gross as to shock the conscience, is not enough to set aside a judicial sale, it is also true that, when there is a great inadequacy, slight circumstances indicating unfairness will be sufficient to justify a decree setting the sale aside. Ballentyne v. Smith, 205 U.S. 285, 27 S.Ct. 527, 51 L.Ed. 803. It was there said, and even a cursory review of the authorities will bear out the statement, that 'each case must stand upon its own peculiar facts.' Now, it fairly appears, and, although disputed in part by appellant, was found to be the fact by the trial court, that the property stood upon the county assessment roll in the name of W. H. Vernon, a former owner, a resident of...