56 Wash. 190 | Wash. | 1909
On the 9th day of December, 1902, plaintiffs acquired the fee simple title to lot 33, block 74, Gilman
In April, 1906, plaintiffs forwarded money through their agent, then residing in San Francisco, to pay the 1905 taxes then due, but the money was returned. After a due season of correspondence, plaintiffs learned that the property ivas claimed by defendant. About this time defendant discovered that the sale had not been confirmed; whereupon he attended to that detail, and had the sheriff execute another deed to Bodwell, who in turn deeded the property to defendant. The property at the time it was first sold was worth $3,000, and is now of increased value. Plaintiffs employed an attorney in the spring of 1907. This action was begun on July 21,
Respondents base their claim to reassert title to their property upon two principal grounds; the one, that the assessment was made under the law of 1901, whereas the law of 1891'should have been followed, and for that reason nó lien was created; the other, that appellant, in abuse of his trust as city attorney, bought the property at a grossly inadequate price, without exercising due diligence or making such inquiry as might have led to a discovery of the post-office address of respondents, thus insuring notice of the pending suit. The defenses set up are, the validity of the foreclosure proceeding; that respondents are expatriated citizens; that this is a collateral attack upon the judgment; that the action was not begun within the time limited by law, and'that respondents have been guilty of laches.
Without discussing the statutes of 1891 and 1901, we think the judgment of the lower court must be sustained upon the second ground urged by respondents. It is the duty of an attorney — and that duty will be laid with heavy hand upon a public officer who becomes a purchaser at a sale conducted by him for the public benefit — to exercise due care, and to pursue such sources of inquiry as are open to him and which may lead to the means of giving notice to the citizen whose property is about to be charged. Appellant cites the rule that any person can purchase at a judicial sale who has no duty to perform in reference thereto inconsistent with the character of a purchaser. But in this case appellant was confronted with a two-fold duty, a duty to the city and a duty to-the owner. If the duty is violated, the sale may be avoided at the suit of the party injured.
“Such purchase by the attorney, if at a greatly inadequate price, should cause vigilant scrutiny into anything which might affect the fairness or unfairness of .the sale.” The Ruby, 38 Fed. 622.
Such sales are not favored and, with slight attending circumstances, are enough to prompt the discretion of the chancellor.
See, also, Burke v. Daley, 14 Mo. App. 542; Clute v. Barron, 2 Mich. 192; Shroeder v. Young, 161 U. S. 334, 16 Sup. Ct. 512, 40 L. Ed. 721. And we may add to the quotation, that an equal duty was upon the attorney to locate the owner if possible. A public officer, especially a city attorney, owes the same duty to the citizen that he owes to the municipality. He acts to some extent in the character of a trustee. In this connection we indorse the utterance of the supreme court of Arkansas, in speaking of the fight of an attorney for an administrator to purchase át his own sale:
“The doctrine has been extended to all persons entrusted with the management and direction of sales, in such manner as to impose upon them the duty of taking care that the property may be sold to the best advantage for all concerned. They cannot purchase at all, however fair their intentions. As purchasers their interests would conflict with their duties, and the courts of equity, regarding the weakness of ordinary men, takes from them all temptations by rendering them incapable of purchasing at all.” West v. Waddill, 33 Ark. 575, 587.
And also the case of Wright v. Walker, 30 Ark 44, where
Speaking to the defenses interposed, the complaint and proofs are ample to charge defendant as a trustee; the question of collateral attack thus' becomes immaterial. No rule of law has been cited, nor do we know of any, that will forfeit the property of the citizen who for any reáson becomes expatriated. The action was bégun within the period of limitation, and -unless there be some controlling equity, the court will not conjure the doctrine of laches to defeat or destroy a statute fixing a time within which actions may be brought. Cordiner v. Finch Investment Co., 54 Wash. 574, 103 Pac. 829.
The judgment is affirmed.
Rudkin, C. J., Fullerton, and Gose, JJ., concur.
Morris, J., took no part.