54 Wash. 363 | Wash. | 1909
On February 2, 1901, defendants’ grantor purchased at tax foreclosure sale a tract of land known as Tract 2, of Day’s Acre Gardens, now situated in the city of Seattle. The property has ever since been in the possession of the defendants and the grantors, since which' time they
The assignments of error raise two questions, (1) the sufficiency of the tax proceeding, and (2) the sufficiency of the tender made to respondents before this action was begun. The first point may be passed without discussion. The summons commanded the defendants to “appear within sixty days after the date of service of the summons,” and was insufficient under the authorities cited. Passing to the second question, appellants’ attorney swore that he offered respondents the sum of $125 in full payment of all taxes, interest, penalties, and costs incurred by them and their grantors, which tender was refused. The point is made by respondents that the sum tendered was insufficient. A calculation of the items appearing in the record convinces us that this point is well taken. The amount due was a sum in excess of $125, and respondents must prevail unless we hold that a sufficient tender has been waived.
In the case of Gould v. Knox, supra, we held that a tender could be waived and that the testimony in that case in connection with an assertion of title was enough to show that a tender in any sum would have been ineffectual. We can see no difference between that case and this one. If the insufficiency of the tender was the only defense relied upon, plaintiffs could not recover. But defendants have set up ownership, and a tender thus becomes immaterial; this
Therefore, upon the authority of the former decisions of this court, the judgment of the lower court is reversed, with instructions to the trial court to ascertain the value of improvements to which respondents may be entitled under chapter 137, Laws 1903, p. 262, and to enter judgment accord^ ingly.