Turpen v. Johnson
| Decision Date | 19 December 1946 |
| Docket Number | 29909. |
| Citation | 175 P.2d 495,26 Wn.2d 716 |
| Parties | TURPEN et ux. v. JOHNSON et al. |
| Court | Washington Supreme Court |
Action by E. R. Turpen and Hazel C. Turpen, husband and wife against Mose Johnson and Mrs. Mose Johnson, husband and wife and Clark County, Washington, to quiet title on certain realty. From a judgment quieting title in the Johnsons, the plaintiffs appeal.
Affirmed.
Appeal from Superior Court, Clark County; Charles W. Hall, judge.
Edgar M. Swan, of Vancouver, for appellants.
Sugg & Mason, of Vancouver, for respondents.
This is an action brought by plaintiffs E. R. Turpen and wife against Mose Johnson and wife and Clark county, a municipal corporation, as defendants. Its purpose is to quiet title in certain real estate situated in Clark county, Washington, which, so far as our present inquiry is concerned, is described as follows:
'Beginning at a point 8.15 chains North and 6.50 chains East of the quarter section corner between Sections 14 and 23, Township 2 North, Range 1 East of the W. M. * * * (Carried as Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C.)' (Italics ours.)
Plaintiffs alleged and proved, by deed offered and received in evidence, that they were the owners of the real estate so described as successors in interest of one Christina Schmeer, their grantor, who had conveyed the property in question to them on August 11, 1944. Plaintiffs' amended complaint further alleged that Clark county had acquired title to the property in question in a tax foreclosure proceeding instituted in the superior court of the state of Washington for Clark county in cause No. 15869, and that such foreclosure proceeding included certificate of delinquency No. 10 which had been issued in the name of one Edward Schmeer, former owner of the property. Edward Schmeer was the husband of Christina Schmeer. He died intestate, March 6, 1938.
It was further alleged by plaintiffs that the foreclosure proceeding resulted in judgment and execution sale and conveyance by deed from the treasurer of Clark county to Clark county, a municipal corporation, of premises apparently intended to be the identical premises now in controversy, but erroneously described as 'Beginning at a point 8.15 chains North and 6.50 chains East of the quarter section corner between Sections 14 and 25, * * * (Carried as Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C.)' (Italics ours.)
The tax foreclosure proceeding terminated by entry of decree in the superior court for Clark county on January 13, 1937.
Defendants Johnson and wife based claim to their right and interest in the property upon an executory contract of purchase of the premises in controversy entered into between them and Clark county on May 22, 1943. This contract also contained the erroneous description of the property, identical with the same erroneous description carried in the foreclosure proceeding, in that it contained the words 'corner between sections 14 and 25' in the metes and bounds description, whereas such description should have read 'corner between sections 14 and 23.'
It must be noted, however, that the description of the premises set forth in the contract between Clark county and Johnson and wife contained the words '(Carried as Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C.)'
Plaintiffs' action to quiet title and to set aside the foreclosure proceedings whereby Clark county assumed title to the property was commenced on September 7, 1944, which was more than seven years after entry of decree in the tax foreclosure proceeding. In their original answers, neither Clark county nor the Johnsons, as defendants, pleaded the statute of limitations, and plaintiffs, in their original complaint, failed to mention the date of the deed of conveyance by which they claimed to have acquired title from Christina Schmeer.
In an amended answer and affirmative defense, defendants Johnson pleaded the statute of limitations as a bar to plaintiffs' cause of action. Later developments in the trial indicated that defendants Johnson were relying upon Rem.Rev.Stat. § 162, which provides as follows: 'Actions to set aside or cancel the deed of any county treasurer issued after and upon the sale of lands for general, state, county or municipal taxes, or for the recovery of lands sold for delinquent taxes, must be brought within three years from and after the date of the issuance of such treasurer's deed: Provided, that this section shall not apply to actions not otherwise barred on deeds heretofore issued if the same be commenced within one year after the passage of this act.'
At the trial, no effort was made by either Clark county or the defendants Johnson to establish the statute of limitations as a defense. Seventy-two days after the trial had ended and fifty-six days after the court's decision had been entered on the merits, defendants Johnson interposed a motion for leave to reopen the case and to submit evidence supporting the allegation in their amended complaint that the statute of limitations was in effect and constituted a bar to plaintiffs' action. The court ordered the case reopened and received testimony as to the date of the treasurer's deed to Clark county, following entry of decree of foreclosure against the land in controversy.
As heretofore noted, in all of the foreclosure proceedings, including notice, complaint, and judgment, and in the purchase contract between Clark county and the Johnsons, there was, following the erroneous metes and bounds description, a definite reference description reading as follows: '(Carried as Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C.)' True, the correct metes and bounds description required a showing of cornering between sections 14 and 23. In the foreclosure proceeding, the description referred to the tract's cornering between sections 14 and 25, which, of course, is a legal and physical impossibility. This was the clerical inadvertence which brought on the present litigation. The phrase referring to 'Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C.' specifically relates to the tract cornering between sections 14 and 23. In this connection, reference is had to the testimony of John Spurgeon, county assessor of Clark county:
'
West 10.88 chains to beginning, containing 15 acres more or less, except for the Bonneville right of way.
To this extent, therefore, and in spite of the erroneous metes and bounds description contained in the foreclosure complaint and the decree which followed, the actual land in controversy is definitely traceable and accurately described in both the foreclosure decree and in the Johnson contract with Clark county.
The trial court held that the statute of limitations constituted a complete defense to plaintiffs' action and quieted title in the Johnsons. Plaintiffs have appealed, bringing to this court four main questions for determination. They may be summarized as follows:
I. Is appellants' action to quiet title, instituted more than seven years after the entry of judgment in the foreclosure proceeding, barred by the three-year statute of limitations which is defined in Rem.Rev.Stat. § 162?
II. Assuming that the statute of limitations might be set up as a defense by Clark county, may it be interposed by respondents Johnson, Clark county's vendees under an executory contract? More succinctly stated, does the purchaser of real estate under an executory contract acquire an interest in the property which may be made the basis of a suit, or countersuit, to protect or quiet title later to be acquired?
III. Is the reference description to the property in question sufficient to validate Clark county's title, acquired in a foreclosure proceeding, where the metes and bounds description is otherwise erroneous?
IV. Did the trial court abuse its discretion in permitting the case to be reopened for the purpose of allowing respondents Johnson to prove that appellants' action was barred by the statute of limitations?
We must answer proposition I in the affirmative. Even though the description contained in the decree of foreclosure is void appellants' present action to quiet title, brought seven years after entry of decree in the tax foreclosure proceeding, could not prevail in the face of the statute of limitations. Rem.Rev.Stat. § 162. We have held that...
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