Young v. Droz

• Decision Date: 01 May 1905
• Citation: 80 P. 810,38 Wash. 648
• Parties: YOUNG v. DROZ et ux.
• Court: Washington Supreme Court

80 P. 810

38 Wash. 648

YOUNG v. DROZ et ux.

Supreme Court of Washington

May 1, 1905

Appeal from Superior Court, Stevens County; William E. Richardson Judge.

Action by J. H. Young against Louis Droz and wife. From a judgment for defendants, plaintiff appeals. Reversed.

S. & J W. Douglas, for appellant.

C. A Mantz and L. C. Jesseph, for respondents.

ROOT, J.

On the 3d of October, 1901, the county of Stevens brought an action to foreclose a certificate of delinquency held by it for delinquent taxes. The title of the case was 'Stevens County v. H. Kahlen and 103 others.' The summons was in the following language, to wit: 'You are hereby summoned to appear within sixty days after the service of this summons upon you, exclusive of the day of service, and defend this action or pay the amount due against your property, together with the costs; and in case of your failure to do so judgment will be rendered foreclosing the lien for said certificate of delinquent taxes, penalty interest and costs against the lands and premises hereinafter mentioned.' At the bottom of the summons the date of first publication was plainly stated. Under this proceeding certain real estate lots belonging to appellant were sold to the county, and thereafter by the county to respondents. Appellant brings this action to quiet title to said lots, and to decree the sale thereof under the aforesaid foreclosure proceedings null and void. Under former decisions of this court, said foreclosure proceedings and the sale of said real estate thereunder were null and void. Instead of reading 'sixty days after the service of this summons upon you,' it should have read, 'sixty days from the date of first publication of this summons,' or in equivalent language shown that answer must be made within 60 days from the date of first publication of the summons. See Dolan v. Jones (Wash.) 79 P. 640; Thompson v. Robbins, 32 Wash. 149, 72 P. 1043; Smith v. White, 32 Wash. 414, 73 P. 480; Woodham v. Anderson, 32 Wash. 500, 73 P. 536.

It is contended by respondents, however, that appellant is estopped to raise any question as to the legality of this foreclosure proceeding, for the reason that at the public sale of these premises by the county he appeared personally and bid upon the same. Respondents urge that this conduct on the part of the appellant constituted an estoppel as against him. This contention cannot be maintained. If the sale and the proceedings pursuant to which it took place had been merely irregular or voidable, there might be force in respondents' contention. But as the sale was absolutely void, an estoppel cannot be successfully...