Shipley v. Gaffner

• Decision Date: 06 January 1908
• Citation: 93 P. 211,48 Wash. 169
• Parties: SHIPLEY et ux. v. GAFFNER et ux.
• Court: Washington Supreme Court

93 P. 211

48 Wash. 169

SHIPLEY et ux. v. GAFFNER et ux.

Supreme Court of Washington

January 6, 1908

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by F. K. Shipley and wife against W. T. Gaffner and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

Elias A. Wright and F. C. Kapp, for appellants.

Eugene A. Childe, for respondents.

MOUNT J.

This action was brought by appellants against respondents to recover possession of certain real estate in King county which respondents claim under a tax deed, and also to remove the cloud thereby created. The general demurrer interposed to the amended complaint by respondents was sustained. Appellants elected to stand on their complaint, and an order of dismissal was entered, from which this appeal was prosecuted.

The amended complaint alleged that appellants acquired the fee-simple title to said property in November, 1889; that they have continued to be the sole owners and entitled to the exclusive possession thereof ever since; that the tax rolls in the office of the county treasurer for the years 1891-92-93-94 show that appellant F. K. Shipley as owner had duly paid the taxes for those years before delinquency; that in the tax rolls for the years 1891, 1892, and 1896 to 1902 both inclusive, said property was assessed to appellant F. K Shipley, he being designated therein as the owner thereof that in preparing the tax rolls for the year 1895, the county officials carelessly and negligently failed to insert the names of appellants as owners of said property, and left the space provided therefor blank, although each of said officials well knew, or by the use of reasonable diligence could have ascertained, that the appellants were the owners thereof; that on January 31, 1898, at which time the rolls of all the prior years were in his office, the treasurer of said county issued to the county a certificate of delinquency against said property for the taxes of the year 1895, amounting to $2.20; that he carelessly and negligently neglected to name appellants as the owners of said property in the certificate, the space provided therefor having been left blank, although he well knew, or by the use of reasonable diligence could have ascertained, that appellants were the owners of said property; that he thereafter filed such certificate as the complaint in an action to foreclose the same; that neither of the appellants was named as a party to said action, or attempted to be served with any process whatever; that in the published summons, which was the only process served or attempted to be served on the appellants in said action, appellants were not named at all, said property being designated therein as belonging to unknown owners, although the county treasurer well knew, or by the use of reasonable diligence could have ascertained that the appellants were the owners thereof; that thereupon a decree of sale was entered, and said property was advertised to be sold as belonging to unknown owners; that in November, 1902, a treasurer's deed was issued to respondent W. T. Gaffner, under which respondents claimed title to said property; that neither of appellants had any actual or constructive knowledge of said proceedings until August, 1906; that said property is worth $1,000; that a proper tender of all taxes, penalties, interest, and costs had been made prior to the commencement of this action, which tender was refused; that by virtue of said matters the tax deed under which respondents claim title to said property was void and constituted a cloud upon the title of appellants.

The main question in the case is, may the county foreclose for delinquent taxes against property assessed to...