Shelton v. Klickitat County

• Decision Date: 16 May 1929
• Docket Number: 21661.
• Citation: 152 Wash. 193,277 P. 839
• Parties: SHELTON v. KLICKITAT COUNTY.
• Court: Washington Supreme Court

277 P. 839

152 Wash. 193

SHELTON v. KLICKITAT COUNTY.

No. 21661.

Supreme Court of Washington

May 16, 1929

Department 2.

Appeal from Superior Court, Klickitat County; Homer Kirby, Judge.

Action by Bert Shelton against Klickitat County. From a judgment of dismissal, plaintiff appeals. Affirmed.

McMaster Hall & Schaefer, of Vancouver, for appellant.

F. A Smith and John R. McEwen, both of Goldendale, for respondent.

PARKER J.

The plaintiff, Shelton, sought, in the superior court for Klickitat county, recovery from that county of the sum of $1,200 paid by him to the county as the purchase price of a quarter section of land sold and conveyed to him by the county after it had acquired the land through general tax foreclosure sale. The county's demurrer to Shelton's complaint being by the superior court sustained, and Shelton electing not to plead further, judgment of dismissal was accordingly rendered against him, from which he has appealed to this court.

Following allegations showing the prosecution by the county of a general tax foreclosure against the land resulting in final judgment ordering sale thereof, the complaint alleges:

'That at the sale held pursuant to said tax foreclosure proceeding, no other bids having been received, the said property was duly sold to the county of Klickitat, and a proper conveyance made by the county treasurer to the said county.

'That thereafter, to-wit: on the 2nd day of November, 1925, the Board of County Commissioners of the county of Klickitat entered an order directing the county treasurer to sell the real property hereinabove described, and the county treasurer of said county proceeded to publish in due form, except as hereinafter alleged, a notice of sale of said real property to be made, commencing at the hour of 10 A. M. on the 12th day of December, 1925.

'That pursuant to said notice of sale, the said county treasurer duly offered the said property for sale, and that the plaintiff became the purchaser thereof for the sum of Twelve Hundred ($1200.00) Dollars; that thereafter, he duly paid the said sum to the said county treasurer and received from said county treasurer a due and proper conveyance of said real property, except as hereinafter alleged, executed on the 16th day of December, 1925.

'That the said real property, at the time of the beginning of the tax foreclosure proceeding, was located within a duly established drainage improvement district and was subject to the lien of a certain drainage improvement district assessment and installments thereof in a large sum, and that at the time of the sale of said real property by said county treasurer to the plaintiff, the same remained subject to certain installments of the said assessment amounting to a large sum not yet due at the time of said sale, and that neither the notice of sale nor the deed given and executed in said proceeding so stated.

'That at the time the plaintiff became the purchaser of the real property he relied upon the terms of the notice of sale and deed above mentioned and believed in good faith that the same was free and clear of the lien of the said drainage improvement assessment.'

The complaint further alleges presentation of Shelton's claim of $1,200 to the county commissioners and its rejection by them. The prayer is for judgment against the county in the sum of $1,200, with interest.

Contention is made in behalf of Shelton, in substance, that the sale by the county to him is void, and that he did not acquire title by the county's deed to him, given in pursuance of the sale, because neither the notice of sale nor the deed from the county to him contained any statement relative to drainage improvement assessments upon the land, and that therefore he is entitled to recover the purchase price. Counsel for Shelton invokes the following provisions of our drainage and diking improvement statute:

'Property subject to a drainage or diking or sewerage improvement district assessment, acquired by a county pursuant to a foreclosure and sale for general taxes, when offered for sale by the county, shall be offered for the amount of the general taxes for which the same was struck off to the county, together with all drainage or diking or sewerage improvement district assessments or installments thereof, due at the time of such resale, including maintenance assessments, and supplemental assessments levied pursuant to the provisions of Section 4439-6, coming due while the property was held in the name of the county; and the property shall be sold subject to the lien of all drainage or diking or sewerage improvement district assessments or installments thereof not yet due at the time of such sale, and the notice of sale and deed shall so state.' Section 4439-4, Rem. Comp. Stat., as amended by chapter 46, Session Laws of 1923, p. 126, § 11.

At the time of the making of the sale and conveyance of the land from the county to Shelton, our general tax statute, referring to sections of Remington's Complied Statutes, provided, in so far as need here be noticed, as follows:

'§ 11309. * * * The proceeds of any sale of any property acquired by the county by tax deed shall be justly apportioned to the various funds existing at the date of the sale, in the territory in which such property is located, according to the tax levies of the year last in process of collection.'

'§ 11310. Real property hereafter or heretofore acquired by the several counties of the state of Washington for taxes shall be subject to sale...