Sparks v. Standard Lumber Co.

• Decision Date: 25 August 1916
• Docket Number: 13415.
• Citation: 92 Wash. 584,159 P. 812
• Court: Washington Supreme Court
• Parties: SPARKS v. STANDARD LUMBER CO.

159 P. 812

92 Wash. 584

SPARKS v. STANDARD LUMBER CO.

No. 13415.

Supreme Court of Washington

August 25, 1916

Department 1. Appeal from Superior Court, Spokane County; Edward H Wright, Judge.

Suit by O. M. Sparks against the Standard Lumber Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

F. W Girand and Roche & Onstine, all of Spokane, for appellant.

Joseph Rosslow, of Spokane, for respondent.

CHADWICK J.

Appellant began this action to foreclose a mortgage upon a certain tract of land in Spokane county. The complaint, in addition to the usual averments, sets up a tax foreclosure proceeding, and a tender to the respondent, the present owner under the tax title, of the full amount bid at the tax sale, with costs and 15 per cent. interest from the time of the sale, asserting that the tax foreclosure proceeding and sale was void. Respondent set up title deraigned through the tax foreclosure proceeding, and other defenses not necessary to be mentioned.

The invalidity of the tax foreclosure is alleged to be in that although the delinquency certificate was taken out in the name of Feninger, who is named as defendant, one Le Roy Price was the record owner at the time the certificate was foreclosed; that the holder of the certificate made Price a party defendant, and, having known the fact of his ownership, was bound to serve him under penalty of voiding the whole proceeding. Service was made on Feninger personally, and on Price by publication, but it is insisted that no reasonable or honest effort was made to make personal service on Price. The proceeding would not be open to question had the plaintiff in the tax foreclosure been content to make Feninger alone the party defendant. Williams v. Pittock, 35 Wash. 271, 77 P. 385; Spokane Falls & N. R. Co. v. Abitz, 38 Wash. 8, 80 P. 192; Ballard v. Ross, 38 Wash. 209, 80 P. 439; Rowland v. Eskeland, 40 Wash. 253, 82 P. 599; Darnell M. Co. v. Ruckles, 45 Wash. 180, 88 P. 101; French v. Taylor, 54 Wash. 624, 104 P. 125; Radcliff v. Hughes, 82 Wash. 167, 143 P. 980; Rockwood v. Turner, 154 P. 465.

The only question calling for consideration is whether the service on Price was essential to give the court jurisdiction. We shall assume that Price was at the time a resident upon the land, and might have been served personally, and that no effort was made to make personal service, although the fact is not established to our entire satisfaction. Under the statute and the authorities cited, Price was not a necessary party to the proceeding. It will require no citation of authority to sustain the proposition that a failure to serve an unnecessary party to a proceeding in rem cannot be asserted in a collateral attack upon a judgment. This is the logic of French v. Taylor, 54 Wash. 624, 104 P. 125.

Aside from the rules governing in ordinary cases, we are reminded of the statute (Rem. & Bal. Code, § 9267) which declares that tax deeds 'shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser: * * * That the sale was conducted in the manner required by law.' This means that the former rule and the one even now prevailing in many states, that a purchaser at a tax sale buys caveat emptor and has the burden of sustaining his title, is overthrown, and the burden is on the one who asserts its invalidity to overcome the deed by competent and controlling evidence. This rule has been relaxed only in exceptional instances, in cases of active fraud, and where a party had actually paid, or had made a bona fide attempt to pay, his taxes, and the fault was that of the public officials. But these cases were made to rest upon equitable principles. The record disclosed no fault in the one whose duty it was to meet the tax. Such an one must find his rights as well as his remedies in the statute.

The nonpayment of a tax is held to be a fault. We have said in many cases that one must take notice of the fact that taxes will be assessed against his property and must be paid, and, if not, the property will be sold to satisfy the tax. Williams v. Pittock, 35 Wash. 271, 77 P. 385. We have emphasized the fact that the tax laws take account of the property rather than the owner. Allen v. Peterson, 38 Wash. 599, 80 P. 849. This is no more than to say that a proceeding to collect a tax is a proceeding in rem, and that objections going to jurisdiction over the person will find no favor unless based upon some recognized principle of equity.

The Legislature has for 25 years, by the clearest expressions, made a tax foreclosure a proceeding in rem, and a tax title a favored title as contradistinguished from the ordinary conception of a tax title--a title tainted with the suspicion of illegitimacy. In keeping with its purpose, it has even made a title issued under a void tax foreclosure a good title if not attacked within three years. Lara v. Sandell, 52 Wash. 53, 100 P. 166; Hamilton v. Witner, 50 Wash. 689, 97 P. 1084, 126 Am. St. Rep. 921; Huber v. Brown, 57 Wash. 654, 107 P. 850; Baylis v. Kerrick, 64 Wash. 410, 116 P. 1082; Fish v. Fear, 64 Wash. 414, 116 P. 1083; Fleming v. Stearns, 66 Wash. 655, 120 P. 522; Radcliff v. Hughes, 82 Wash. 167, 143 P. 980.

To this purpose the courts have given liberal response. So that, with the passing of the old rule, it may fairly be said that a tax title is no longer nullius flius, but is equivalent to a decree quieting the title in the purchaser as a grant from the sovereign state. Wilson v. Korte, 157 P. 47; Savage v. Ash, 86 Wash. 43, 149 P. 325; Gustaveson v. Dwyer, 78 Wash. 336, 139 P. 194; Hanson v. Carr, 66 Wash. 81, 118 P. 927.

Appellant relies upon certain of our decisions. It may be that we have allowed some confusion to creep into them, but we think the cases, in their final analysis, are not inconsistent with the cases relied on by respondent or with our present holding.

In Pyatt v. Hegquist, 45 Wash. 504, 88 P. 933; Id., 45 Wash. 699, 88 P. 935, the land was assessed to an unknown owner. The decision was made to rest upon the 'peculiar facts' of the case; the holding being that where land is assessed to an unknown owner, and the true owner is known, and is actually living on the land at the time of the foreclosure, it is a fraud to publish summons 'under the circumstances and conditions of the record.' The circumstance dwelt on throughout the opinion was that the land was assessed to an unknown owner. In Olson v. Johns, 56 Wash. 12, 104 P. 1116, the certificate was issued in the name of the defendant, who was the only party defendant. So in Rust v. Kennedy, 52 Wash. 472, 100 P. 998, the certificate was issued in the name of Rust who lived on the land. No personal service was made or attempted in either case, although it might have been made. It was held to be a fraud on the right of the property owner to resort to a service by publication. The holding in these cases rests, not upon the tax statutes, but upon the general rules of law that a necessary defendant may not be served by publication where personal service might have been had by the exercise of ordinary diligence. In the latter case the court distinguishes the cases, referring to Allen v. Peterson, supra, which we shall have occasion to notice, and further laid down the test, in actions in rem, that the statute must be strictly followed, which is but another way of saying, if the statute is strictly followed, the proceeding is not void.

That a proceeding against the land in the name of the one described as owner in the certificate is within the statute is held by all the cases where the question is discussed. To hold that a proceeding, regular upon its face, is void because an unnecessary defendant under the statute is made a party and not served, would be to open tax foreclosure judgments to attack where the owner of the delinquency certificate had, or should have had,...