Ward v. Huggins
| Decision Date | 23 February 1893 |
| Citation | 7 Wash. 617,32 P. 740 |
| Parties | WARD v. HUGGINS. [1] |
| Court | Washington Supreme Court |
Appeal from superior court, Pierce county; F. Campbell, Judge.
Ejectment by Hubert C. Ward against Edward Huggins. Defendant obtained judgment. Plaintiff appeals. Affirmed.
John M. Boyle and M. Mulligan, for appellant.
Judson & Sharpstein, for respondent.
The respondent moves the court to strike the statement of facts and the exhibits from the transcript, on the grounds: First because the same are improperly made a part of the transcript, being originals, and not copies, as required by law; second, because the statement of facts was settled without having given the respondent any notice thereof as required by law; third, because said statement is not certified to, as required by law. While the law contemplates that the clerk shall send up to this court a copy of the statement of facts, we do not think that the fact that the original has been embodied in the transcript can work any injury to the respondent, and therefore deny the motion on that ground, as we have heretofore done in similar cases. Nor do we think the motion should be sustained on either of the other grounds stated. The notice of settlement was duly given and served, but at the time fixed by the court for the hearing the judge was absent. On his return two days afterwards he fixed another date for the settlement of the statement, of which respondent appears to have had no notice and at which time he was not present in person or by his counsel. Neither is it shown by the record that the hearing was continued by order of court; and, this being so, the respondent's objection would be valid under many decisions of this court if he were in a position to make the objection. It was his duty to serve a written notice upon the opposite party, stating whether or not the correctness of the statement of facts was contested, and, if contested, in what particular or particulars it was deficient, incorrect, or incomplete, (2 Code Proc. § 1422;) and, having failed to do so, and it not appearing that the statement as settled was different from that originally filed, and of which respondent had notice, he cannot now be heard to urge his objection. The certificate of the judge states all the law requires, and is therefore sufficient.
The appellant brought this action against the respondent to recover the possession of certain land in Pierce county. The respondent, in his answer, denied all of the allegations of the complaint, and set up as a further defense the sale of the land on July 24, 1877, for nonpayment of taxes for the year 1876; the delivery of a certificate of purchase therefor; that said taxes were never paid or the land redeemed, and that a deed was delivered to defendant by virtue of said tax sale from the treasurer of Pierce county on March 14, 1883; and that plaintiff's action was barred by section 51 (67) of the act of November 9, 1877, and by section 2939 of the Code of 1881. A demurrer to the defense of the statute of limitations was sustained by the court as to section 2939 of the Code, but by leave of the court the defendant subsequently amended his answer so as to plead the statute of limitations as set forth in said section 2939, by stating the date when the tax deed was recorded. At the trial in the superior court the appellant proved that he purchased the land in controversy in the year 1871 from one J. W. Brazee, who purchased the same from the grantee of the United States; but his deed was not placed of record until some time after the tax deed under which the respondent claims was recorded. After the appellant had introduced his evidence and rested his case, the respondent offered in evidence the deed from the county treasurer of Pierce county, under which he claims title to the land. The court admitted the deed in evidence, over the objection of the plaintiff, without requiring the defendant to first show the regularity of the tax proceedings under which the deed was issued. In so doing the appellant claims the court committed error; and that would be true were it not for the provision of the statute under which the deed was issued, which declares that such deeds shall be presumptive evidence of the regularity of all former proceedings. Laws 1875, p. 72, § 41. The evident design of the statute was to obviate the necessity, on the part of the grantee, of making preliminary proof of prior proceedings. Any other construction of the statute would render it meaningless and useless. The common-law rule which cast upon the claimant under a tax title the burden of proving that every successive step in the tax proceedings, required by statute, had been taken, was found to work disadvantageously to purchasers at tax sales; and the difficulty of proving every step in a long course of proceedings with unvarying certainty, and the strong probability that some irregularity or slight omission in the proceedings could be found to defeat the title, had a strong tendency not only to deter persons from purchasing at such sales, but to make owners of property negligent in the payment of their taxes. A tax title was proverbially no title, and tax sales, though sanctioned by law, were little less than farcical. To remedy this undesirable state of affairs the legislatures of the various states have enacted statutes making tax deeds prima facie or presumptive proof of the regularity and legality of the preliminary proceedings, as well as of the deed itself, thus casting the burden of proof upon him who asserts the invalidity of the conveyance; and where such a statute exists the tax deed is competent evidence in behalf of the claimant, and its rejection, if offered as evidence of title, is ground for reversal of the judgment. Black, Tax Titles, § 251. It follows, therefore, that the respondent's deed was properly admitted in evidence.
But the appellant insists that, even if respondent's tax deed was competent evidence of title, the court erred in not permitting him to prove its invalidity by showing that the assessment was irregular and void by reason of having been made in the name of one not at the time the owner of the land, and that the land in controversy was assessed with other land without designating the value of each separate tract upon the assessment roll, and so returned upon the delinquent list; that the sale was not properly advertised and that the land was not sold at the time specified by law; that the certificate of sale was not in conformity with the statute, and that the deed itself was irregular in several respects. The trial court held that the action was barred by the statute of limitations, and that the testimony offered was therefore immaterial. And this brings us to the consideration of the controlling question in the case. There can be no doubt that the testimony offered would have impeached the tax proceedings upon which the respondent's deed is based. Nor can it be doubted that the execution of the deed might have been enjoined by timely application to the court. And the only question, therefore, is whether the appellant has not suffered the time to pass within which he had a right to question the tax proceedings, or the deed founded thereon; or, in other words, whether the statute of limitations has not purged the tax proceeding of all imperfections, and established the validity of the deed beyond question. The statute relied on by respondent is as follows: "Any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter, except by the purchaser at the tax sale." Code Wash. § 2939. This statute was passed subsequently to the execution of the deed in question, and for that reason appellant contends that it is inapplicable to the case at bar; but to that proposition we are unable to assent. The language of the act is general and comprehensive, and would seem to indicate that the legislature intended it to apply at least to all tax deeds recorded after the law took effect. In this case the deed was not recorded until some time after the statute went into operation, and we are of the opinion that the statute began to run in favor of the respondent at the time his deed was placed of record. Statutes of limitation relate only to the remedy, and the statutory limitation may be extended or shortened by the legislature, at its pleasure, provided a reasonable time is allowed for parties to assert existing rights. Wood, Lim. Act. pp. 26, 27, and cases cited; Id. p. 30; Blackw. Tax Titles, (5th Ed.) § 940. They are generally no part of any contract, and no party to a contract has any vested interest in a particular limitation. Keith v. Keith, 26 Kan. 27; Terry v. Anderson, 95 U.S. 628. In the latter case the court said: ...
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