54 Wash. 574 | Wash. | 1909
This is an action to quiet title to certain real property, and to have certain tax proceedings, wherein the property was sold and conveyed under a purported judgment of the superior court of Spokane county, declared null and void. In his complaint the plaintiff alleged, that he was the owner in fee simple of the premises so sold, that the same were vacant and unoccupied, and that he was lawfully entitled to their possession; that the defendant was a corporation; that it claimed some title, right or interest in the land adverse to that of the plaintiff through and under an attempted tax foreclosure proceeding had in the superior court of the state of Washington for Spokane county, numbered 15,355, wherein John A. Finch was plaintiff and Alice E. Burdick was defendant, and wherein the title of Alice E. Burdick, who was then the owner in fee simple of the premises, was attempted to be cut off; that Alice E. Burdick was
“That the court never acquired jurisdiction over the defendant, or over the land and premises described in said attempted tax foreclosure proceedings, the same being the lands and premises described in this complaint, for the reason that the said defendant was never served personally, by publication or otherwise, with summons or notice; that she never in any manner appeared in said action; that the only manner in which the court attempted to acquire jurisdiction was by summons by publication in words and figures and in the manner and form as set out in paragraph 6 herein; that the said summons was not in accordance with the statute in such cases made and provided, and was and is wholly null and void; that its publication did not confer upon the court jurisdiction to render or enter any judgment therein; that the judgment attempted to be rendered and entered in said tax foreclosure proceedings was and is wholly null and void and of no force whatever; that all of said attempted tax foreclosure proceedings, including the tax deed issued thereunder by the treasurer of Spokane county on the 9JÍth day of April, 1901, are null and void; and that the said attempted tax foreclosure proceedings, including the said tax deed attempted to be issued thereunder, confer upon said defendant no right, title or interest in said land or any part thereof.
“(11) That prior to the commencement of this action, plaintiff tendered to said defendant, in United States of America gold coin, all taxes, penalties, interest and costs paid by said purchaser at said void tax sale or his assignees or grantees, and that said tender was refused by said defendant, and that said plaintiff is ready, able and willing*577 to pay all taxes, penalties, interest and costs to which said defendant is entitled by law.
“Wherefore, Plaintiff prays judgment as follows: That the judgment attempted to be entered in said tax foreclosure proceedings, being case No. 15,355 in the above entitled court, be declared and decreed to be null and void; that the tax deed issued in pursuance thereof be declared null and void; that all subsequent deeds based thereon be declared null and void; that he be permitted to redeem from said attempted tax sale, that he be adjudged to be the owner in fee simple of the lands and premises in this complaint free from any right, title, claim or interest on the part of the said defendant; and that he have such other and further relief as he may be entitled to under the premises, together with his costs, attorney’s fees and disbursements herein.”
After service of summons upon it, the defendant appeared in the action and moved the court to require the plaintiff to make his complaint more definite and certain in the following particulars; that he state in what way he deraigned his title from Alice E. Burdick, and if the transfer is in writing that he set forth the same and furnish the defendant with a copy thereof; that he state whether a judgment by default was entered in the cause referred to in paragraph ten of the complaint, and set out a copy of the judgment; that he set out the proceedings in the action referred to in paragraph ten, .and that he state when and where the tender, was made, mentioned in paragraph eleven, and state to whom the tender was made. As a part of the same motion it requested the court to require the plaintiff to furnish it with the same information in the form of a bill of particulars. The motion was denied, whereupon the defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. On hearing, the demurrer was overruled. The defendant thereupon filed an answer which did not controvert any of the allegations of the complaint, but alleged, on information and belief, that the plaintiff in the action was an attorney at law practicing his profession
The plaintiff thereupon moved for judgment in his favor on the pleadings, winch motion the court granted, entering judgment declaring void all .of the proceedings had in the tax foreclosure proceeding, quieting title in the plaintiff to property described therein, and giving the plaintiff judgment for his costs. It found, however, that the defendant had paid taxes on the land amounting to the sum of $39.93, and gave it judgment for this sum, declaring the same a lien upon the land. From this judgment the defendant appealed.
On appeal the defendant makes four assignments of error. The first three, however, are argued under one head, namely, that the complaint does not state facts sufficient to constitute a cause of action; and we will so consider them. It is first argued that the complaint fails to show that there are any clouds upon the plaintiff’s title. But the complaint we think does set out the instruments constituting the cloud with sufficient certainty. It is alleged that they arise out of a certain tax foreclosure proceeding, the number, title, and the court wherein the proceedings were had, are stated. The judgment alleged to be void is stated to be the judgment entered in that proceeding, and the tax deed alleged to be void is stated to be the tax deed issued by the treasurer of Spokane county under that judgment, bearing a certain date. Under the liberal provisions of our statute, this states with sufficient certainty the instruments alleged to constitute the cloud. True, it is not alleged in words that these instruments constitute a cloud on the plaintiff’s title, but that is the necessary inference from the facts pleaded, and this is sufficient
Furthermore it is not the rule in this state that the court will set aside a deed or other instrument adversely affecting the plaintiff’s title to real property only in those cases where extrinsic evidence is necessary to show its invalidity. It is our practice, contrary perhaps to the general rule, to set aside the .invalid instrument whether the invalidity be patent or latent. Lemon v. Waterman, 2 Wash. Ter. 485, 7 Pac. 899; Jackson v. Tatebo, 3 Wash. 456, 28 Pac. 916; Montgomery v. Cowlitz County, 14 Wash. 230, 44 Pac. 259. For this reason less particularity in setting out the invalid instrument is required in this jurisdiction than in a jurisdiction where the contrary rule prevails.
The second objection under this head is that the complaint fails to allege the amount of the tender. This allegation was made in the words of the statute and stated the ultimate fact to be proven. This was sufficient. Had the appellant desired to contest the allegation it could have put it in issue, and put the plaintiff upon proofs. But failure to state the amount tendered is not fatal to the complaint. Kahn v. Thorpe, 43 Wash. 463, 86 Pac. 855, does not announce a contrary doctrine.
The third objection is that the record shows on its face that the plaintiff’s tender was insufficient. This contention is founded on the fact that the court allowed the appellant a judgment for $39.93, while the summons set out in tne
The fourth objection is that the plaintiff was guilty of laches. But there is nothing on the face of the complaint that shows laches. The action was commenced within the period of the statute of limitations, and the statute always, measures the time within which an action may be begun, in the absence of some special circumstance rendering the prosecution of the action inequitable. When nothing is shown but lapse of time, laches cannot be claimed within the period of the statute. We conclude, therefore, that the complaint states a cause of action.
The last assignment is that the court erred in holding that the appellant’s answer did not state facts sufficient to. constitute a defense. Stripped of its verbiage the allegation is that the respondent is an attorney at law, and that he purchased the interest of a former owner of the land for an inadequate consideration, expecting to recover it, at the end of a lawsuit, on the strength of the title so acquired. But whatever may be said concerning the morality of the
There is no error in the record, and the judgment will stand affirmed.