Williams v. Pittock

• Decision Date: 28 June 1904
• Citation: 77 P. 385,35 Wash. 271
• Parties: WILLIAMS v. PITTOCK et ux.
• Court: Washington Supreme Court

77 P. 385

35 Wash. 271

WILLIAMS v. PITTOCK et ux.

Supreme Court of Washington

June 28, 1904

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Petition by H. L. Pittock and wife for the vacation of a judgment of foreclosure of a delinquency tax certificate rendered in a suit to foreclose the same by F. F. Williams, the holder thereof. From a judgment dismissing the petition, the petitioners appeal. Affirmed.

B. G. Cheney and Coovert & Stapleton, for appellants.

John C Hogan, for respondent.

HADLEY J.

Respondent as the holder of a delinquency tax certificate, brought suit to foreclose the same. Judgment by default was entered. The sale of the premises was ordered, and respondent became the purchaser at treasurer's sale. Within a year from the date of its entry, appellants, by petition, asked for the vacation of the judgment. Respondent demurred to the petition on the ground that it does not state facts sufficient to support the relief asked, and also that the court has not jurisdiction to entertain the petition. The demurrer was sustained. Appellants elected to stand upon their petition and judgment was entered dismissing the same. This appeal is from the judgment.

It is assigned that the court erred in sustaining the demurrer for the alleged reason that the allegations of the petition show that the foreclosure proceedings amounted to an attempt to deprive appellants of their property without due process of law. The petition avers that appellants are and ever since 1871 have been, the owners of the land, and that in the foreclosure proceedings they were neither served with process nor made parties. It is alleged, however, that service upon them was attempted to be made by publication directed to W. L. Pittock and Mrs. W. L. Pttock, his wife, and to R. L. Pittock and Mrs. R. L. Pittock, his wife; but that the court did not acquire jurisdiction of the subject-matter of the action for the reason that neither the actual owners nor the reputed owners were made defendants, and that neither were served with process. It is also alleged that neither of the appellants had actual notice or knowledge of the pendency of the action, the publication of the summons, the entry of the judgment or the sale of the property until some months thereafter. Reference to the application for judgment in the foreclosure proceeding, which is attached to the petition as an exhibit, discloses that the property was assessed for these taxes in the name of R. L. Pittock, who was made a party, together with the other persons named above, 'and all persons unknown, if any, having or claiming to have an interest in and to the real property hereinafter described.' The publication summons was directed to the same persons.

Appellants do not contend that they were residents of this state, but allege in their petition that they have at all times mentioned been, and now are, residents of the state of Oregon. It is manifest, therefore, that as far as appellants were concerned, publication summons became the proper process in the case under our statutes. Such being true, are they bound by the notice that was given, although they were not named therein? That the summons was specifically directed to the person in whose name the property was assessed must be taken as true, since the exhibit attached to appellants' petition so states, and it is not denied by other averments. It appears, therefore, that good faith was exercised by naming in the summons the person whose name appeared upon the tax records as the owner. We think no more was required. Tax proceedings under our statutes are purely in rem. Coolidge v. Pierce County, 28 Wash. 95, 68 P. 391. The same is true of tax foreclosure proceedings. Washington Timber & Loan Co. v. Smith (Wash.) 76 P. 267. Our statutes permit property to be assessed to an unknown owner when the owner's name is unknown. Section 1699, 1 Ballinger's Ann. Codes & St. Also Sess. Laws 1899, p. 287, c. 141, § 3. It is also provided that the notice in the foreclosure proceedings shall contain the name of the owner, if known. Section 1751, subd. 1, 1 Ballinger's Ann. Codes & St. Also Sess. Laws 1901, p. 383, c. 178, § 1, subd. 1. The fair inference to be drawn from these statutes is that, if the property has been assessed to an unknown owner, and the certificate of delinquency has been so issued, the foreclosure may be had in form against an unknown owner. It would appear that the actual name of the real owner is made no more essential in the proceedings to foreclose than it is in the assessment. The whole procedure, including the assessment, foreclosure, and sale, is for the purpose of establishing and enforcing a lien for public revenue, which, under the policy of the state, is chargeable to the property only, and not personally to the owner. It is the land itself with which the state is concerned, and its dominion over the land for revenue purposes exists without regard to who may be the owner. All owners know that such is the fact, and that the power of taxation will be exercised each year. In the very nature of our revenue procedure the statutory provisions with regard to owners must have been intended to be directory, rather than mandatory--of the form, and not of the essence, of the proceedings. 'Proceedings of this nature are not usually proceedings against parties, nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owners of the land; and if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity, that the case shall assume that form. As in all other cases of proceedings in rem, if the law makes provision for publication of notice in a form and manner reasonably calculated to bring the proceedings to the knowledge of the parties who exercise ordinary diligence in looking after their interests in the lands, it is all that can be required.' Cooley on Taxation (2d Ed.) p. 527. If the property is assessed to an unknown owner, or to one not the real owner, the holder of a certificate should not be required to determine in advance who may be the real owner. That may be a difficult matter, and may often be the subject of serious dispute. The Supreme Court of Minnesota, in McQuade v. Jaffray (Minn.) 50 N.W. 233, 234, aptly observed as follows: 'In several cases, as in Association v. McComber, 41 Minn. 20, 42 N.W. 543, it appeared that the ownership of the land was erroneously stated in the published list; but no suggestion was ever made that this invalidated the judgment. Any such rule would subvert the whole policy of our tax law. The statute nowhere makes it the duty of assessors or county auditors to search the records with a view of ascertaining the names of the real owners. Such a search would impose upon them an impossible labor; and, even if it were possible to perform it, it would often still remain a doubtful question of law who was the real owner, for, as is said in the McComber Case, the ownership of land is often a matter of grave doubt and uncertainty.' The above reasoning is clearly as applicable to the holder of a delinquency certificate as to assessors and county auditors. If the duty to determine in all cases who is the real owner rests upon individual certificate holders, then in the event of foreclosure by a county the officers must determine the real ownership of the long lists of property usually included in such cases. Such a requirement would be impracticable, and, as said by the Minnesota court above quoted, 'would subvert the whole policy of our tax law.' This summons contained a proper description of the land and the name of the person shown by the tax records to be the owner. Commenting upon what the notice in such proceedings shall contain, the opinion in McQuade v. Jaffray, supra, further observes: 'It is elementary that no reference to the name of the owner is necessary in proceedings in rem. It is, however, a common practice in such proceedings to give the name of the owner, if known, 'for frankness' sake', to increase the chances of his attention being called to the notice. The provisions of our statute on the subject are but declaratory of this established practice, and are to be construed as merely directory. The essential thing in such proceedings is the description of the res (the land), and this is complete without the name of the owner. We think it has been the uniform under standing, ever since our present statute was adopted, that no error or omission in stating the name of the owner affected the jurisdiction of the court over the land.'

The principle decided in the above case seems to be directly in point here against appellants'...