Rust v. Kennedy

• Citation: 52 Wash. 472,100 P. 998
• Parties: RUST et ux. v. KENNEDY et ux.
• Decision Date: 08 April 1909
• Court: Washington Supreme Court

100 P. 998

52 Wash. 472

RUST et ux. v. KENNEDY et ux.

Supreme Court of Washington

April 8, 1909

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by Hiram H. Rust and wife against Hiram B. Kennedy and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

A. C MacDonald, for appellants.

Walter S. Fulton, for respondents.

MOUNT J.

The plaintiffs brought this action in the court below to set aside a tax judgment and deed issued thereunder upon the ground that the plaintiffs were not served personally with summons in the tax foreclosure proceedings upon which the deed was based. A judgment was entered in favor of the plaintiffs, and the defendants have appealed.

The respondents were owners of the land in question. They neglected to pay the taxes thereon, and a certificate of delinquency was issued to one A. A. Booth, who brought an action to foreclose the certificate. The certificate showed that the land was assessed to the respondent Hiram H. Rust. The action was brought against him, and service was had by publication of summons. Mr. Rust lived in King county, and maintained his residence upon the land. He lived part of the year upon the land, and part at the town of Enumclaw, within about three miles of the land in question. His residence was well known in the vicinity. No personal service was made upon him, and he knew nothing of the foreclosure proceedings until after judgment and deed. He thereupon brought this action to set aside the tax judgment upon the ground above stated. He tendered the amount of taxes due, together with penalty, interest, and costs. The only question in the case is whether the court erred in vacating the judgment and deed because the respondent Rust was not personally served with summons in the tax foreclosure proceedings.

Appellants rely upon the following cases: Washington Timber Co. v Smith, 34 Wash. 625, 76 P. 267; Allen v Peterson, 38 Wash. 599, 80 P. 849; Rowland v Eskelund, 40 Wash. 253, 82 P. 599. The first of these cases was a foreclosure by the county, and it was there held that service might be made by publication, and that the owner was bound to take notice of the action. Allen v. Peterson was an action by a private person to foreclose a certificate. The person to whom the property was assessed and another not mentioned in the certificate were made parties. The service was had by publication. The party to whom the land was assessed was dead. We there held, at page 604 of 38 Wash., and page 851 of 80 Pac., that when 'the Legislature provided that the lien for taxes might be foreclosed in the courts against the person to whom the land was assessed, whether that person was or was not the owner of the property, it acted within its power, and the person foreclosing acquires a legal title by proceeding as the statute directs.' The party to whom the land was assessed was the necessary party. Service could not be made upon him, but could be made in rem only by publication, and such service was sufficient. In Rowland v. Eskelund, where the tax title was based upon a foreclosure by the county, we held that notice...