37 Wash. 176 | Wash. | 1905
On the 14th day of December, 1900, the defendant, F. E. Jones, commenced an action in the superior court of Chehalis county, in this state, to foreclose a delinquency certificate on the lots and lands in controversy in this action. There was no appearance by any person in the foreclosure proceeding, and the only process served was the publication of a summons, citing the defendants “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,” etc. The summons was signed by the plaintiff’s attorney, and beneath his signature was, “Date of first publication, Dec. 14, 1900.” On the 21st day of March, 1901, a decree of foreclosure was entered by default, directing the sale of the property described in the delinquency certificate. On the 6th day of April, 1901, the property was sold pursuant to said decree and order of sale, and bid in by the plaintiff in said action, who is one of the defendants in this action. On thei 11th day of February, 1904, the plaintiff in this
The first question raised by the respondents is that this is an action to quiet title, and inasmuch as the appellant is not in possession and the lots are not vacant or unoccupied, the court had no jurisdiction, and the action could not be maintained. We do not think that this is an action to quiet title, as claimed by the respondents. The reason why a person cannot maintain an action to quiet title to lands in the possession of another is that the party out of possession has a full and complete remedy in an action at law to recover possession. The appellant here had no such remedy. In an action at law to recover possession he would be concluded by the tax judgment and sale, which he could not attack collaterally. The only remedy open to the appellant was either to move directly in the tax foreclosure case to vacate the tax judgment, or to bring an independent suit in equity for that purpose. He chose the latter course, and we hold that he is properly before the court.
The second objection urged by the respondents is that there is nothing in the record to overcome the finding of the court, in the tax foreclosure case, “'that summons and notice has been duly served in this proceeding, as required by the
In Thompson v. Robbins, 32 Wash. 149, 72 Pac. 1043, the form of the summons was, “You are hereby summoned to appear within sixty days after the service of this summons upon you, exclusive of tire day of service, and defend this action or pay the amount due,” etc. In that case, as in this, the summons was subscribed by the plaintiff’s attorney, and underneath his signature was “First publication Feb. 23, 1901.” From the foregoing statement, it will be seen that the two summonses are identical in every respect, and each was issued and published under the same law. Laws 1897, p. 182, § 96, subd. 3. In the case just cited this court says:
“The summons which was published in the foreclosure proceeding required the defendant 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, together with costs,’ etc. This summons was not in accordance with the statute, and its publication did not confer upon the court jurisdiction to render the judgment which was entered in the foreclosure proceeding. And the judgment was therefore not merely irregular, but void.”
This decision was reaffirmed in Smith v. White, 32 Wash. 414, 73 Pac. 480, and Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536. Counsel for respondents cite the case of Williams v. Pittock, 35 Wash. 271, 77 Pac. 385, to sus
For the foregoing reasons the tax judgment and sale were null and void, and the appellant is entitled to, the relief prayed for in his complaint. The judgment is therefore reversed, with directions to enter a judgment cancelling the tax judgment and tax deed, upon payment of all taxes and assessments heretofore paid by the respondents, with interest to date of tender in the court below.
Mount, C. J., Fullerton, Hadley, and Dunbar, JJ., concur.
Root and Crow, JJ., took no part.