Tacoma Gas & Elec. Light Co. v. Pauley

• Decision Date: 04 June 1908
• Citation: 95 P. 1103,49 Wash. 562
• Court: Washington Supreme Court
• Parties: TACOMA GAS & ELECTRIC LIGHT CO. v. PAULEY et al.

95 P. 1103

49 Wash. 562

TACOMA GAS & ELECTRIC LIGHT CO. v. PAULEY et al.

Supreme Court of Washington

June 4, 1908

Appeal from Superior Court, Pierce County; Arthur E. Griffin, Judge.

Action by the Tacoma Gas & Electric Light Company against Luther Harry Pauley and others to avoid a tax sale and deed. Judgment of dismissal, and plaintiff appeals. Affirmed.

T. L. Stiles, for appellant.

I. B Knickerbocker, for respondents.

ROOT J.

This is an action to avoid a tax sale and deed of certain lands in King county; the sale having been made at the general county sale 1902. From a judgment dismissing plaintiff's action and confirming defendants' title, this appeal is prosecuted.

The facts are substantially these: On the 17th day of May, 1881 the Northern Pacific Railroad Company contracted to sell the lands in question to one Charlie Tumas, an Indian, upon payments, the last of which was to be made in May, 1884. Tumas contracted to pay all taxes on the premises. A conveyance was made to Tumas and his 1884. December 26, 1887 Tumas and his wife conveyed to C. F. Seal. December 23, 1889 Seal conveyed to Horatio C. Clement. February 28, 1890, Horatio C. Clement and his wife conveyed to the Tacoma Light & Water Company. May 1, 1895, the Tacoma Light & Water Company conveyed to the plaintiff. The tract of land in controversy is described as 'lot 8 and the E. 1/2 of the N.W. 1/4 of the S.W. 1/4 of section 17, township 21 N., range 5 E., excepting a tract of 5 acres, described as follows: Commencing at a point 1048 feet east of the northwest corner of the S.W. 1/4 of said section 17; running thence south 20 rods; thence east 40 rods; thence north 20 rods; and thence west 40 rods, to the place of beginning.' The plat drawn on a large scale, which is a part of paragraph 3 of the complaint, shows the situation of the land on Green river. For the year 1883 the entire tract, without the exception, was assessed to John Lagolt and Chas. Tumas as owners, and a tax of $3.92 was levied thereon, which not being paid the property was sold to the county, by the sheriff, May 7, 1884. For 1884 the taxes seem to have been paid. For 1885 lot 8 was not assessed at all; but the other part of the tract (E. 1/2 of N.W. 1/4 of S.W. 1/4) was included in a description 'W. 1/2 of S.W. 1/4 of Sec. 17' etc., assessed to 'Charles Tenas,' as owner, and a tax of $11.40 was levied upon the 80 acres described; or, proportionally, $2.85 on the 20-acre tract owned by Tumas. This tax not being paid, the land was sold to the county by the sheriff on the 11th day of June, 1886. The taxes were paid for the years 1886-87-88. For 1889 the tax for the west 20 acres (E. 1/2 N.W. 1/4 S.W. 1/4) was paid, but that on lot 8 was not paid. C. F. Seal was then the owner of the original two tracts, less the five acres, shown upon the plat referred to, subject to whatever rights had been lost by the two sales above mentioned. As an assessment to Seal, this was the entry in the roll: 'Pt. lot 8 (less 5 acres),' the section, township, and range following, and by that description it was sold to the county by the sheriff on the 9th day of August, 1890, for the tax of $3.15. Subsequent to 1890 all taxes were seasonably paid. The revenue law of 1893 required the county treasurer to make up a register of unpaid taxes (section 80, c. 124, p. 358, Laws 1893), and provided that lands theretofore sold to counties for delinquent taxes should be deemed registered (section 85, p. 360). And so the treasurer of King county registered each of the above mentioned sales, and named Charles Tumas and John Lagolt as owners in 1883, 'Charles Tenas' as owner in 1885, and C. F. Seal as owner in 1889. The descriptions were the same as above given, excepting that in registering the sale of 1889 the treasurer added to the description, 'Pt. lot 8 (less 5 acres),' the following: 'Com. at a point 1048 feet E. of N.W. Cor. of N.W. 1/4 of said Sec. 17; S. 20 rods, E. 40 rods, N. 20 rods, W. 40 rods to beg.' Later the above 'N. W.' was changed to 'S. W.' by some treasurer. Next, pursuant to the statute of 1897 (sections 90, 94, pp. 174, 181), the treasurer issued two certificates of delinquency, Nos. 94,879 and 97,880, on the 31st of January, 1898. These certificates were not at hand, and resort for their contents was had to the treasurer's record of them, copies of which the contained in the statement of facts. The first certificate, No. 94,879, covered the E. 1/2 of the N.W. 1/1 of the S.W. 1/4, less the northeast 2 1/2 acres, by a long and complicated description, and recited taxes, penalties, interest, costs, etc., for two years, 1883 and 1885. The second certificate, No. 94,880, covered lot 8, less 5 acres, but the excepted tract as described only included about 3 acres of the lot. There was a recital of taxes, penalties, interest, costs, etc., for two years, 1885 and 1889. Both certificates stated that the owner was 'unknown,' although at the time they were issued the original assessment rolls showed the names of the assessed owners, Tumas, Lagolt, 'Tenas,' and Seal. The register of unpaid taxes contained the same names of owners, and for two years at least--1896-97--the taxrolls of the county had contained the name of the Tacoma Light & Water Company as the owner of the property. In 1890 the lands were sold by the sheriff to the county for taxes delinquent for the year 1889, which taxes appear afterwards to have been paid upon part of the land. On May 14, 1894, the superior court of King county entered a judgment and order of sale, directing the county treasurer to sell said property for delinquent unpaid taxes, and a portion of said property was so sold to the county for the taxes of 1883 and 1885, and the remainder of said property was, under an order of said court, sold to the county for delinquent taxes of 1885 and 1889. All of these proceedings are matters of record in King county. Some time after the delivery of the certificates of delinquency, and prior to January 1, 1902, the county commenced an action to foreclose said certificates. Said action was a proceeding against all real property upon which there were unpaid taxes for the year 1895 and prior years, and is commonly known as the 'King County Omnibus Tax Foreclosure Suit.' The notice of summons was published in the Seattle Times, and covered many pages of that paper. All acreage property was described and arranged numerically in said notice and summons according to range, township, and section. The tracts of land involved herein appeared in the proper place in said notice with the owner's name appearing as 'unknown' in each instance. The usual proceedings were had, and a judgment and decree and order of sale duly signed and entered in the suit. Pursuant to said judgment, decree, and order of sale, the county treasurer sold the property herein involved to this respondent Luther Harry Pauley, and on December 9, 1902, the county treasurer, in pursuance of said sale, executed and delivered to Pauley a tax deed which was duly recorded. On or about June 15, 1905, the appellant tendered respondent Pauley $117.08 for moneys paid by Pauley for taxes, penalties, interests, and costs upon paid property, and requested respondent to execute to appellant a quitclaim deed of the land in controversy. Respondent decling to receive the money or execute the deed, this action was commenced in July, 1905.

Appellant's first contention is that, because the published summons was not addressed to any of the several owners of the property taxes as they appeared upon the tax rolls up to the day the foreclosure suit was commenced, it was void as to that property, and conferred no jurisdiction upon the court to render any judgment against it. We do not think this contention can be upheld. It has been repeatedly held by this court that proceedings to foreclose a tax certificate are in the nature of proceedings in rem, and that they run against the property itself rather than the owner. In the case of Shipley v. Gaffner, 93 P. 211, this court ...