122 Wash. 225 | Wash. | 1922
— This action, as originally instituted, was one to recover a money judgment against Archibald J. Fisken, who was the only defendant named in the complaint. When Fisken answered, he filed a cross-complaint and caused the county of King and its treasurer to be made parties. By the cross-complaint, it was sought to restrain the county and the treasurer from asserting that the taxes upon specified real property for a certain year had not been paid. After the cross-complaint was filed, the original complaint, by stipulation, was amended to ask for the same relief as that sought in the cross-complaint. The county and its treasurer demurred to the cross-complaint, which demurrer was overruled. They elected to stand upon the demurrer, and judgment was entered as prayed for. From this judgment, the county and its treasurer appeal. The facts are not in dispute and will be here sufficiently set forth to present the controlling question.
In June, 1919, the respondent Fisken, as agent for the Mortgage Bond Company of New York, procured from this company for respondent Mae Seward a loan of $3,000, to be secured by mortgage upon lots ten (10) and eleven (11), block one (1), of Densmore’s Summit Addition to the City of Seattle. When Mrs. Seward applied for this loan, she did not own this property, but was about to purchase it from Albert A. B-utledge and wife, to whom the Mortgage Bond Company of New York had previously made a loan of
A few preliminary statements will tend to simplify tbe discussion upon tbe controlling question in tbe
Upon this question there is a dearth of authority. So far as we are advised, it has been before the courts upon only two or three occasions and is little discussed by the text writers. In Curnen v. Mayor etc., 79 N. Y. 511, the action was to compel the defendant to discharge a lot in the city of New York belonging to the plaintiff from the lien of certain assessments. It appeared that, before the plaintiff paid the purchase
“The record is for the public; with the book no one but its owner has concern, and of itself, it avails nothing; there is, therefore, no analogy in the modes of treatment to which they may be subjected. The assessment-roll is akin to a judgment; both records, and each creating a lien to be enforced by subsequent proceedings, if the debt or duty is not otherwise discharged. (Mayor, etc., v. Colgate, supra.) If the latter is erroneously discharged, its lien cannot be restored so as to affect bona fide purchasers, or others standing in a similar relation, whose transactions were entered into in ignorance of the error, and in reliance upon the truth of the record. (King v. Harris, 34 N. Y. 330.) The same rule applies here. There*230 can be no doubt tbat tbe plaintiff was led by tbe entry upon the roll to believe that tbe assessments bad been paid, and if they are enforced now, it will be'to her prejudice.”
It is sought to distinguish tbat case because there tbe taxes were paid, not by check, but in money. This is true, but tbe money was paid over under a mistake of fact. A third person who innocently deals with tbe property is in exactly tbe same position whether tbe taxes or assessments in question have been paid by money or by tbe giving of a check, when in one case tbe money is paid under a mistake of fact, and in tbe other tbe check is returned not paid. Tbe record in both cases showing tbat tbe taxes bad been paid, tbe effect is tbe same. But even if there is tbe distinction between tbat case and this which is sought to be made, tbe argument and discussion in tbat case and tbe bolding sustain tbe position tbat tbe doctrine of estoppel will apply. In tbe later case of O’Leary v. Board of Education of the City of New York, 93 N. Y. 1, 45 Am. Rep. 156, it was said:
‘‘A fact once admitted by a corporation through its officer duly and properly acting’ within tbe scope of bis authority, is evidence against it and cannot be withdrawn to tbe prejudice of anyone who in reliance upon it has changed bis situation in respect to tbe matter affected thereby. In such a case tbe doctrine of estoppel applies to a corporation as well as to an individual.”
citing tbe Curnen case.
In tbe case of Kuhl v. Mayor of Jersey City, 23 N. J. Eq. 84, tbe plaintiff bad purchased certain land, and at tbe time of tbe purchase bad procured a certificate from tbe city tax collector showing tbe amount of tbe taxes and assessments in arrear against tbe property. On tbe day when the deed was delivered and the
In Franklin County v. Carstens, 68 Wash. 176, 122 Pac. 999, it was held that the defendant, which, by declaration and conduct of its officers, had induced certain conduct, would be estopped.
The basis of the Kuhl case, supra, which deals with a corporation acting in a governmental capacity, and that of Franklin County, which deals with a municipal
In Philadelphia Mortgage & Trust Co. v. Omaha, 63 Neb. 280, 88 N. W. 523, 93 Am. St. 442, 57 L. R. A. 150, the view was first expressed, though the question was not involved in the case, which was to the effect that estoppel would not operate against a municipal corporation acting in a governmental capacity. Upon a rehearing, a second opinion was written in which that question was reserved. The language of the opinion upon rehearing, so far as it has any hearing at all, would seem to indicate that the court was leaning in the opposite direction from that indicated in the first opinion. It is of the essence of justice to have a fixed standard and that there should not be one standard for the state or its municipal corporations and another for the citizen. If it should he held that the county was not estopped in a case like the present, it would seriously interfere with the facility with which real estate transactions are conducted. It is a well known fact that it is a common occurrence for the purchaser of property, before he pays over the purchase price, to have exhibited to him receipts showing the payment of taxes, and in reliance upon these the purchase price is paid. If the purchaser cannot rely upon the official receipt of the proper officer, it would lead to endless inconvenience. It is said, however, if the doctrine of estoppel he applied, then it will interfere with the convenient practice which is now adopted hy county treasurers in accepting checks in payment
The questions whether Mrs. Seward, the respondent, would have had a right to maintain an action against the county treasurer and his bondsmen, and whether the county will now have a right to maintain such action, are not now before us and we express no opinion thereon.
The judgment will be affirmed.
Parker, O. J., Holcomb, Mackintosh, and Hovey, JJ., concur.