Schultz v. Kolb, 26349.
| Decision Date | 22 January 1937 |
| Docket Number | 26349. |
| Citation | 64 P.2d 79,189 Wash. 187 |
| Parties | SCHULTZ v. KOLB et ux. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Spokane County; Chas. H. Leavy, Judge.
Action by Annie M. Schultz against Andrew Kolb and wife. Judgment for plaintiff, and defendants appeal.
Reversed with direction.
Ralph E. Foley, and A. O. Colburn, both of Spokane, for appellants.
M. E Mack, of Spokane, for respondent.
This is an action to set aside a sale of real estate had under tax foreclosure proceedings and to quiet title to the property in the plaintiff. Trial Before the court, without a jury resulted in findings and conclusions favorable to plaintiff and a decree granting her the relief sought. Defendants have appealed.
The property here involved consists of a ten-acre tract of land located about a mile outside the city limits of Spokane. Immediately west of this tract is another tract of ten acres, and immediately north of that is a tract of five acres. All three tracts, spearately described, were conveyed to respondent in a single deed from her parents on October 17, 1917. At another time not definitely fixed, respondent obtained from her parents a deed to an adjoining tract of ten acres, making, in all, thirty-five acres held and owned by her.
Upon the five-acre tract above mentioned is a house in which respondent and her husband have lived for twenty-three years; nearby, on the same tract, are a barn, a chicken house, and a brooder house. A portion of the thirty-five acres has been used by respondent, from time to time, for the cultivation of various crops, and the remainder usually for pasturage. The ten-acre tract here involved has no improvements upon it nor has it been inclosed with a fence for a number of years.
In 1924, respondent, because of financial stress, allowed the taxes upon most, if not all, of her land to become delinquent. In 1929, or thereabouts, she paid the delinquent taxes on all the land except the particular ten acres involved in this controversy. Just why the delinquent tax was not paid on that tract is not known. Respondent herself could give no definite explanation therefor. Most probably it was an oversight on her part or else because she did not have the money.
In May, 1931, the county treasurer issued to Spokane county a general certificate of delinquent taxes, listing a great number of lots and tracts of land on which taxes for the year 1923 had not been paid. In the certificate was included the ten-acre tract with which we are here concerned. Shortly afterwards, the county brought an action, pursuant to the provisions of Rem.Rev.Stat. § 11278, to foreclose the tax liens embraced in the certificate. After a decree of foreclosure had been obtained, the unredeemed area, including this particular ten-acre tract, was bid in by the county. After it had received its deed, the county brought proceedings under chapter 171, p. 472, Laws of 1925, Ex.Sess., as amended by chapter 83, p. 244, Iaws of 1931, Rem.Rev.Stat. § 11308-1 et seq., to quiet title to all the property still unredeemed, and in due course obtained a decree. Notice in both of the proceedings just referred to was given by publication, of which respondent had no actual knowledge.
Subsequently, the ten-acre tract involved in this controversy was sold by the county to appellants, through the usual resale procedure.
Upon learning that appellants had purchased the ten-acre tract, respondent endeavored to buy back the property, but without success. She thereupon brought this action to have all proceedings and sales thereunder set aside.
A number of questions have been raised by appellants' assignments of error. The determination of one of these questions will dispose of the others.
As remarked by the trial court in its oral opinion at the conclusion of the case, if the original general tax foreclosure proceeding was valid against respondent, then she would not be entitled to relief, and we need go no further.
Respondent does not contend, nor did the trial court hold, that there were any procedural defects in the original tax foreclosure proceeding. The ground upon which relief was sought by respondent and granted by the court was that there had been a misstatement or misrepresentation by the county treasurer to respondent concerning the tax delinquency and the possibility of any tax foreclosure.
The trial took place May 26, 1936. Respondent's testimony upon the particular question with which we are presently concerned was as follows: From September, 1930, to May, 1931, she had occasion to go to the county courthouse each month to get a warrant cashed, and on two of such occasions, several months apart, in the early part of 1931, she went to the treasurer's office to see how her taxes stood. The reason given by her for making the inquiry at those particular times was that her father, who had given her the land, had for many years been paying the taxes, but, because of his advanced age, did not remember such things very well.
On both visits to the treasurer's office, respondent talked to someone behind the counter. Who this person was she did not know, nor was he ever identified. Respondent referred to him, in her testimony, as the county treasurer or his assistant. At any rate, she told this person, to whom, for convenience, we shall hereinafter refer as the deputy, that she and her husband had been out of work for a couple of years and that her father had given her the land and had paid the taxes on the particular tract of ten acres, but that she wanted to know whether there were any delinquencies in connection therewith. At the same time, she handed the deputy her deed, which gave the description of three of the tracts.
The deputy took the deed and, using it as a reference, examined certain records back of the counter. After such examination, the deputy told respondent that everything was all right, which according to her testimony, she understood as meaning that there were no delinquencies. Asked by her counsel what she would have done if she had been told that there were unpaid taxes on the property, she answered: 'Well, we would have done something about it.' In response to a leading question whether she was able, ready, and willing to pay the taxes, she replied in the affirmative. Relying on the information given her by the deputy, she paid no further attention to the matter until she learned that appellants had purchased the property on resale.
On cross-examination, respondent testified that, owing to the depression and because her taxes were not entirely paid, she made inquiry concerning any possible delinquencies; further, the deputy had told her that 'everything seems to be all right,' and that 'you haven't any land that could be put up for back taxes or anything to make you any trouble on for four or five years to come.' She admitted, however, that she had received her tax statements, by mail, each year, and it is apparent that respondent knew that her taxes were not all paid.
Respondent was alone when she visted the treasurer's office, and her testimony regarding the alleged inquiry was not corroborated in any way. It appears, also, that in 1931 there were twenty assistants, or deputies, in the treasurer's office, any one of whom might have been the person to whom respondent talked.
Only one of the deputies was called to testify. He was one of those who would most likely have been at the counter where respondent made her inquiry. He, however, knew nothing of the incident. He testified that it was the custom of the office, whenever such inquiries were made, to give the information in writing on special blanks prepared and used for that purpose. No written statement, however, touching the matter involved here was produced by respondent.
This being an action to quiet title, it is one of equitable cognizance and is, therefore, triable de novo on appeal.
The question which we are called upon to decide is whether...
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Olson v. Chapman
... ... action being equitable in nature, it is triable de novo in ... this court. Schultz v. Kolb, 189 Wash. 187, 64 P.2d ... We will ... first consider the questions ... ...
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King County for Foreclosure of Liens for Delinquent Real Property Taxes for Years 1985 Through 1988, In re
...any objections to the proceedings except where the tax has been paid, or the property was not liable to the tax. See Schultz v. Kolb, 189 Wash. 187, 193, 64 P.2d 79 (1937). We have also recognized that a tax deed may be invalidated where the action of a public official has prevented payment......
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Label v. Cleasby
...Pierce County v. Newbegin, 27 Wash.2d 451, 178 P.2d 742 (1947); Nalley v. Hanson, 11 Wash.2d 76, 118 P.2d 435 (1941); Schultz v. Kolb, 189 Wash. 187, 64 P.2d 79 (1937). The facts of the cited cases, however, indicate that relief under the third exception has been granted only in cases where......
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Niichel v. Lancaster, 48220-9
...of taxes are given a liberal construction. (Footnotes omitted.) Among the cases cited for the latter proposition are Schultz v. Kolb, 189 Wash. 187, 64 P.2d 79 (1937) and Spokane County ex rel. Sullivan v. Glover, 2 Wash.2d 162, 97 P.2d 628 (1940). In the earlier of these cases, which invol......