Wingard v. Pierce County

• Decision Date: 13 July 1945
• Docket Number: 29621.
• Citation: 160 P.2d 1009,23 Wn.2d 296
• Parties: WINGARD v. PIERCE COUNTY et al.
• Court: Washington Supreme Court

160 P.2d 1009

23 Wn.2d 296

WINGARD v. PIERCE COUNTY et al.

No. 29621.

Supreme Court of Washington

July 13, 1945

Department 1.

Suit by Leo L. Wingard against Pierce County and the Town of Ruston to quiet title to certain lands, wherein the demurrer of defendant town was sustained and wherein defendant county cross-complained. From a judgment for the county, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Pierce County; E. F Freeman, judge.

A. L Garnes and J. Peter P. Healy, both of Tacoma, for appellant.

Thor C Tollefson, Theo L. DeBord, and Earl D. Mann, all of Tacoma for respondent.

STEINERT Justice.

Plaintiff brought suit against Pierce county and the town of Ruston, seeking to have his alleged title to certain lands quieted as against any and all claims of the county and of the town. Each of the defendants demurred to the complaint. The demurrer of the town of Ruston was sustained, and no further steps have been taken in this action against that particular municipality. The demurrer of Pierce county was overruled, whereupon the county answered by way of a general denial and a cross-complaint praying that the title to the property be quieted in the county as against the plaintiff and all persons claiming by, through, or under him. The reply of the plaintiff joined issue upon the cross-complaint. The cause was tried to the court without a jury. At the conclusion of the trial, the court took the matter under advisement and, later, filed a memorandum decision directing judgment in favor of the defendant Pierce county. Thereafter, the court made written findings of fact and conclusions of law, and thereupon entered judgment dismissing plaintiff's action and quieting title to the property in the county. Plaintiff appealed.

The property involved in this action consists of several tracts of land, separated from each other but located in the same general vicinity, all of them being situated within the town of Ruston, in Pierce county. These tracts were acquired by Lemuel J. Wingard, appellant's father, through various deeds of conveyance during the period between 1912 and 1923. Portions of one of the tracts appear to have been conveyed by Lemuel J. Wingard to the town of Ruston in 1923, presumably for street purposes.

Taxes for the years 1931 and 1932 were duly levied on lands standing of record in the name of Lemuel J. Wingard and including the tracts involved in this controversy, and, thereafter, these taxes, not having been paid within the required time, became delinquent. In 1933, which was after the taxes had become a lien on the lands, Lemuel J. Wingard conveyed certain other portions of the various tracts to the town of Ruston, to be used for streets and highways.

In June, 1940, more than five years after the taxes for 1931 and 1932 had become delinquent, the treasurer of Pierce county issued to the county a certificate of such delinquency. The certificate showed the lands above mentioned as being owned by Lemuel J. Wingard. In that same month, the county commenced a foreclosure proceeding upon the certificate of delinquency. Notice was published as required by law, and in August a judgment of foreclosure was entered. During the time the foreclosure proceeding was in progress the lands here involved were unoccupied and unimproved.

Pursuant to the judgment of foreclosure, the property was offered for sale, in the manner provided by law, and, there being no other bidder than the county, the lands were struck off to it, in satisfaction of its tax lien and judgment. Shortly thereafter, the county was given a deed to the property.

In December, 1942, and January, 1943, respectively, Lemuel J. Wingard executed two deeds in which he conveyed the property here in question to his son, Leo L. Wingard, the plaintiff and appellant herein. The deeds, which were given in consideration of love and affection, and one dollar cash, expressly exempted from their covenants of warranty all unpaid taxes, the grantee assuming and agreeing to pay them. Appellant knew, at least as early as 1941, that the tax foreclosure proceeding had been pressed to its conclusion, for in that year he redeemed two pieces of property which had been included in the same proceeding.

It further appears that in the latter part of 1942 or the early part of 1943 the Federal government entered into an agreement or arrangement with the town of Ruston or with Pierce county, or with both, the object of which was the establishment of a housing project upon certain lands in Ruston, including a portion of the lands involved in this action. Pursuant to that agreement and at the conclusion of certain legal proceedings which seem to have been taken in connection therewith, the Federal government ultimately constructed a number of buildings on the property in 1943. Appellant, having in the meantime received from his father the two deeds above mentioned, and being aware that the housing project was in process of construction, attempted to buy from the county the lands which it had acquired under the foreclosure proceeding. The county, having already entered into an agreement with the Federal government with reference to the property, declined to deal with the appellant. Thereupon, in August, 1943, appellant instituted this action to set aside the tax foreclosure proceeding and quiet title to the property in himself.

Appellant contends that, in entering judgment quieting title to the lands in Pierce county and refusing to quiet the title thereto in him, the trial court erred, in that it included in such judgment certain lands which were not designated in the notice given in the tax foreclosure proceeding but, on the contrary, were expressly excluded therefrom, and further erred in that the court brought into the judgment certain other tracts erroneously described in, or else omitted from, the notice in the foreclosure proceeding.

The statement of facts in this case, consisting of seventy pages is devoted almost entirely to (1) a recital, by the appellant, of the descriptions contained in ten deeds through which he deraigned his title, and (2) the testimony of various witnesses who, with the aid of four maps or plats sought to identify those descriptions and either harmonize them with, or distinguish them from, the descriptions contained in the tax foreclosure proceeding, which latter descriptions were likewise sought to be identified upon the maps. All of those descriptions had reference to lands within the town of Ruston.

We regret to say that the statement of facts is unintelligible, and almost worthless, to us, because the witnesses in locating upon the maps corresponding points and distances described in the deeds and in the tax foreclosure proceeding constantly used the words 'here (indicating),' 'from here to here (indicating),' and similar expressions, which no doubt were perfectly clear and intelligible to the trial judge who observed the witnesses as they pointed out the locations, but to us, who have only the typewritten record, such expressions without any identifying marks upon the maps are meaningless. We have spent considerable time in an effort to figure out what the witnesses meant, but have met with little success.

We have, however, in the record the trial court's memorandum decision and also its findings of fact, and these have been of considerable aid to us, particularly under the circumstances to which reference has just been made.

We realize that this is an equity case, and that in such cases findings of fact are not required; also, that on appeal such cases are tried de novo and that in its consideration of the particular case this court is required to make an independent examination of all the evidence and all of the circumstances disclosed by the statement of facts, and from such examination decide what findings should have been made. Columbia Lumber Co. v. Bush, 13 Wash.2d 657, 126 P.2d 584, 588.

It is equally true, however, as declared in the case just cited, that even though findings of fact are not required in equity cases, yet if they are made by the trial court, they will be considered and given great weight, if the statement of facts is included in the record on appeal. As further stated in the opinion in that case:

'In the situation, however, where the evidence is conflicting or appears to be evenly balanced, the findings of the trial court will not usually be disturbed. [Citing a long list of cases in support of this statement.]'

The findings in the present instance are valuable to us not only because the evidence appears to be in conflict and at least equally balanced so far as the respondent in concerned, but also because, as stated Before , the statement of facts, of itself, is in large part unintelligible to us. Of equal, and possibly of greater, value to us in this instance is the trial court's memorandum decision, referred to in its findings of fact, in which memorandum the trial court expresses at length its views concerning the various descriptions here involved and their sufficiency in law and fact.

The various parcels of land involved in this action have metes and bounds descriptions, but at various places in the record and for ready reference, are spoken of as being located in Diagrams 1², 1⁵, 1³⁶ and 1³⁷ of the town of Ruston. In his brief, appellant refers to each of these diagrams, serially, and points out what he considers to be errors in description. Without specifically setting forth at length each specific error as claimed by the appellant, we may say that as a whole they include generally the following contentions: (a) That some of the descriptions in the foreclosure proceeding include lands which had theretofore been conveyed by appellant's grantor to the town of Ruston;...