59 Wash. 134 | Wash. | 1910
This is an action to vacate the proceedings in a tax foreclosure action involving the lands in question, and to cancel the record of tax deeds. The judgment was in favor of the plaintiff.
It is unnecessary to set forth the deraignment of title in the plaintiff. The court found, among other things, that the Puget Sound National Bank, owning a two-fifths undivided interest, and Mary B. Kittenger, owning a one-fifth undivided interest in said land, endeavored to pay before delinquency all taxes assessed thereon for the years 1901-2-3-4, by paying to the county treasurer the full amount of said taxes; but of the moneys so paid to him the county treasurer applied only enough to pay the taxes upon all of said property except tax lot 4 hereinafter described, and delivered receipts to the said Puget Sound National Bank reciting the payment of all of said taxes for the years 1902 and 1903, but the 1901 and 1904 receipts delivered by him to said bank contained an exception of a part to the Oregon Improvement Company; that the said treasurer delivered to said Mary B. Kittenger receipts showing full payment of all said tax on all of said land for the years 1901-2-3, but the receipt delivered by him to her for the 1904 taxes contained
The court also found that in such tax foreclosure proceeding, the plaintiff, A. Biswanger, could readily have made service upon said Oregon Improvement Company and its successor the Pacific Coast Company, or either of them; that he made no bona fide effort to give notice to such companies or either of them, of said tax foreclosure proceedings; that he caused a summons in said action to be published in the
We think these findings are supported by the testimony in the case. It may be conceded, we think, that there was a bona -fide, honest attempt on the part of the owners of this land to pay the taxes on the same. The testimony shows that the agent of the Puget Sound National Bank, plaintiff herein, went to the treasurer before the taxes became delinquent and delivered to him a check of said bank with the amount left blank, instructing him to pay the taxes on a list of lands which the agent then delivered to the treasurer, and to fill in the amount in the check necessary to make such payment. The same thing was done by Kittenger, as agent for his wife Mary B. Kittenger, who was then the owner of a portion of the land, except that the check in this instance and the list of lands upon which the tax was desired to be paid were sent by mail.
We have decided, in Smith v. Jansen, 43 Wash. 6, 85 Pac. 672; Bullock v. Wallace, 47 Wash. 690, 92 Pac. 675; Loving v. McPhail, 48 Wash. 113, 92 Pac. 944, and Taylor v. Debritz, 48 Wash. 373, 93 Pac. 528, that the efforts of the owner in good faith to pay a tax before delinquency, which was prevented by mistake of the county treasurer, was equivalent to a payment, and rendered a tax sale therefor void. In Smith v. Jansen, supra, it was decided that the prima facie presumption arising from the production of the tax deed was overcome by the admission that the tax had been paid; that the statute by clear and unmistakable impli
The question to be determined in this case is, Do the facts found by the court, and which are sustained by the record, bring the plaintiff within the rule announced in these cases? It is true that, in most of these cases, the taxes had actually been paid and, by some mistake of the treasurer that fact did not appear; but there was an honest and bona fide attempt on the part of the owners in this case to pay the taxes. Money had been forwarded to the treasurer for that purpose, there being no question raised here of the value of the checks furnished.
But it is contended by the appellants that the exception noted in the tax receipt was sufficient to give notice to the owners that the taxes had not been paid on a portion of this land. It seems that a strip of land had been leased to the Oregon Improvement Company for use in the operation of its road, with the agreement that the said company was to pay the taxes on that strip of land; that it had paid the taxes for some time, and had finally abandoned the land, and had not since said abandonment paid said taxes; that the
It is also contended by the appellants that the court erred in allowing respondent to amend its complaint from an alleged excusable neglect of the owner in failing to pay the taxes, to an alleged mistake of the county treasurer. This question of amendment is largely discretionary with the trial court who is familiar with all the circumstances of the case, and we are unable to see in this particular case that the discretion was abused. In any event, no application was made for a continuance, and it has been the uniform decision of this court that, if the defendant deemed itself misled by the change in the complaint, its remedy is to ask for a continuance. In Smith v. Michigan Lumber Co., 43 Wash. 402, 86 Pac. 652, the court, after reciting the facts, said:
“In the light of these facts, it would hardly seem that the appellant could be in earnest when it insists that it was misled as to the person intended to be charged' with negligence; but if it were true that it was misled, it did not pursue the remedy necessary to make the error available to it on appeal. It was not enough to object to the amendment. It should have asked for a continuance on the ground of surprise, and not having done this it is in no position to complain of the ruling as made.”
Other questions are discussed in the briefs, but they are not controlling. We think the judgment of the court was right, and it will therefore be affirmed.
Rudkin, C. J., Parker, Mount, and Crow, JJ., concur.