41 Wash. 130 | Wash. | 1905
On August 4, 1891, one William Munks, since deceased, held the legal title to certain lands situated in Skagit county, and on that date platted the same into ‘lots and blocks, as “Munks’ First Queen Anne Addition to An,acortes-” Prior thereto he had entered into a contract to ■convey an undivided one-half interest in the land to the Seattle & Northern Railroad Company, and on August 10 of the same month, as a compliance therewith, conveyed to that company some eighty-three of the lots, being practically one-
Later on, when the taxes matured, Munks paid to the county treasurer one-half of the amount assessed against the land. The remainder was suffered to become delinquent, and in due time a certificate of delinquency for the same was issued to the county of Skagit. The county foreclosed its certificate in 1903, and an undivided half of the property was sold in satisfaction of the amount due. At the sale the county itself became the purchaser, and later conveyed the interest so purchased to one Thomas Smith, who in turn conveyed to the respondents. Between the time of the assessment and the date of the sale thereunder, William Munks died, and the land was sold as a part' of his estate to the appellants. After the conveyance to the respondents, this action was instituted by the appellants to quiet their title. Issue was taken on the allegations of the complaint and a trial had, at which the foregoing facts were made to appear. It appeared, also, that the appellants did not tender, or offer to pay, to the respondents, prior to the commencement of the action, or at all, the taxes for which the land was sold. On this fact appearing, the trial court ruled that the appellants could not maintain their action, and refusing to' pass on the question of the legality of the tax sale, entered a judgment dismissing the action. This appeal is from the judgment of dismissal.
In the argument, both in their brief and at the bar, counsel for the appellants concede that, if this is an action to recover land sold for taxes, the appellants must fail, for want of having made the required tender, but they contend that it is not such an action, because there was no tax due on the interest of the appellants in the land at the time of the purported foreclosure and sale for which the land could be sold. They argue that a tax lien is analagous to the lien of a mort
It is true that in this state it is provided by statute that, where a partition of real property is made between tenants in common through the instrumentality of the courts, in a proceeding to which lien holders are made parties, all liens which had theretofore attached to the undivided interest of one of the tenants should thereafter he a lien only on the share assigned to such tenants; and that this court, in Port v. Parfit, 4 Wash. 369, 30 Pac. 328, applied the rule to a case where the partition was voluntarily made between parties holding lands as tenants in common. But it is plain that neither the rule of the statute nor the rule' of the cited case meet the conditions here. At the time the land was assessed, there was nothing on "the record to show that the railroad company had any interest in it. The title stood in the name of William Munis. The statute then provided that an owner of land might pay one-half of the taxes on his land before a certain date and receive a rebate of a certain per cent on the amount thereof, and have a given time to pay the remainder without the imposition of a penalty. When, therefore, Munis paid onehalf of thei taxes on this land, he did
Inasmuch, therefore, as it is not made to appear that the tax was void on its face, the appellants cannot maintain an action to recover the land sold to satisfy the tax without first paying or tendering to the person claiming under the tax title the amount of the tax with interest, penalties and costs, for which the land was sold. Bal. Code, §§ 5678-5680; Ward v. Huggins, 16 Wash. 530, 48 Pac. 240; Merrit v. Corey, 22 Wash. 444, 61 Pac. 171; Denman v. Steinbach, 29 Wash. 179, 69 Pac. 751.
The judgment will stand affirmed.
Mount, O. J., Hadley, Budkin, Crow, Boot, and Dunbar, JJ., concur.