Spokane Falls & N. Ry. Co. v. Abitz

• Decision Date: 29 March 1905
• Court: Washington Supreme Court
• Parties: SPOKANE FALLS & NORTHERN RY. CO. v. ABITZ et ux.

80 P. 192

38 Wash. 8

SPOKANE FALLS & NORTHERN RY. CO. v. ABITZ et ux.

Supreme Court of Washington

March 29, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action to quiet title by the Spokane Falls & Northern Railway Company against Albert Abitz and another. From a judgment for defendants, plaintiff appeals. Affirmed.

M. J. Gordon and C. A. Murray, for appellant appellant.

Poindexter Kimball & Barnhart, for respondents.

MOUNT, C.J.

Appellant brought this action to remove a cloud from its title to lots 5 and 6, block 14, First Addition to Sinto Addition to Spokane. Defendants filed a general demurrer to the complaint, which demurrer was sustained. Plaintiff elected to stand upon the allegations of the complaint, and the action was dismissed. The appeal is from this order.

The complaint alleges, in substance, that appellant is the owner and in possession of the said lots; that lot 6 was not assessed for taxation for the year 1892; that lot 5 was assessed to 'unknown owner' upon the treasurer's rolls for that year, and the tax so assessed became delinquent. Both of said lots were assessed to appellant for the years 1893-94, and appellant appeared upon the roll for those years as the owner. The taxes so assessed became delinquent. Both of the said lots were assessed to one J. M Cataldo for the year 1895, and he appeared upon the rolls for that year as the owner. The taxes so assessed became delinquent. On January 31, 1898, all of the taxes as stated before remaining delinquent, a certificate of delinquency issued to Spokane county for said not 5 for the year 1892 and for lot 6 and a part of lot 5 for the years 1893-95. Both of said lots were assessed to appellant for the years 1899 and 1900, and appellant appeared upon the rolls as owner in those years. In the month of October, 1901, Spokane county began an action in the superior court of that county to foreclose said certificate of delinquency, which action was entitled 'Spokane County v. Each and every person, firm, or corporation named in the following list as being the owner or owners, according to the tax rolls of Spokane county, of lands, tenements, lots, tracts,' etc., therein described, and, following their respective names, 'and to each and every person, firm, or corporation, known or unknown, if any, having or claiming to have a lien or right or title in and to said premises,' etc. The notice in the action entitled as above stated contained a list of real estate, in which list J. M. Cataldo was named as the owner of said lots 5 and 6. The persons designated in said notice in the manner above stated were notified and summoned by publication to appear and defend said action. No other notice was given. Appellant did not appear in said action. Pursuant to said foreclosure proceeding, a decree was entered and a sale had, and a deed to said lot 6 and a part of lot 5 was issued to one H. A. Hover, who transferred his interests to respondents. J. M. Cataldo was never the owner of said lots, or either of them. He was not the owner as shown by the rolls for the years 1892-94. He was not the owner or reputed owner as shown by the rolls for the years 1900 and 1901. When the foreclosure proceedings were begun appellant was the only person or corporation interested in said lots down to the year when the sale took place. The latest rolls in the treasurer's office at the time the foreclosure action was begun and when said notice was issued and published were the rolls for the year 1900, upon which the name of the appellant appeared as owner of said lots. The appellant was not unknown. Said J. M. Cataldo was not the owner of the lots in fact, and was not, by the treasurer's tax rolls, shown to be the owner, at the time the foreclosure action was begun. The appellant was not named as a party defendant to said foreclosure proceeding, and was not served with notice other than the published notice, and never had any actual notice of said action or any proceedings had therein. Nor was the property proceeded against as belonging to an unknown owner. The complaint alleged also that the property was at all times therein mentioned of the value of $1,000; that appellant had ever been ready and willing to pay all taxes against said property, and would have paid the same if it had known that any foreclosure proceedings had been begun, and that it would have redeemed said premises, and would not have permitted the same to be sold for delinquent taxes, and tendered the respondent all taxes, interest, penalty, and costs paid by respondent, amounting to the sum of $249.70, and prayed that the tax deed be set aside and canceled. The complaint was filed on the 10th day of December, 1903, more than one year after the deed under the tax foreclosure sale had been issued.

This appeal involves the consideration of section 3 of the law of 1901, p. 385, c. 178, relating to the collection of taxes which section is as follows: 'Sec. 98. After the expiration of five years...