Preston v. Cox , 50 Wash. 451 ( 1908 )

Hadley, C. J.

This is an action to set aside certain tax foreclosure decrees, and to remove the cloud of all proceedings thereunder. Certificates of delinquency were issued for the several lots concerned to PI. B. Kennedy, for the unpaid taxes of 1896 and prior years. The name of the owner upon the tax rolls at the time the taxes were assessed was L. M. Ordway, and each of the certificates of delinquency showed that the property was so assessed. In the suits to foreclose the liens of the certificates, L. M. Ordway was not named in the notices or summonses. She was dead at the time, a fact which was then known to the plaintiff in the foreclosure suits. Under probate proceedings in the estate of L. M. Ordway, the lots in question were, by decree of distribution, distributed to E. E. Ordway and Ellen Preston. In the foreclosure suits the said distributees were named as defendants in the notices, but they were both dead at the time, a fact then unknown to the holder of the certificates. The foreclosure proceedings are attacked here on the ground that the notices were insufficient under the statute to confer jurisdiction upon the court. Thé plaintiff in this- action, D. O. Preston, has acquired the interest which was distributed under the probate proceedings and, claiming to be the community owners thereof, he and his wife have brought this action. The court gave judgment against the plaintiffs, and they have appealed.

The record of the tax title foreclosure presents a peculiar situation. The tax record owner was dead, and was not named in the notices. It was held in Williams v. Pittock, 35 Wash. 271, 77 Pac. 385, that, inasmuch as the tax foreclosure proceeding is purely one in rem, it is the intention and policy of the statute that the notice is sufficient when it is directed to the tax record owner and to all persons unknown, if any, having an interest in the property. It was also held in Sherman v. Schomber, 43 Wash. 330, 86 Pac. 569, that a publication summons addressed to the person appearing on the tax rolls as owner is sufficient, although such person is dead at the time.

It is contended, however, that it has never been held that it is sufficient to name a tax record owner who is dead when the fact of such death is known to the certificate holder. Such a question has not been directly passed upon by this court, so far as we are advised. We think, however, that knowledge of the death is an immaterial factor. The purpose of the statute is to establish some standard by which a certificate holder may require all persons interested in the property to take notice of the pending procedure to foreclose. As we said in Williams v. Pittoch, supra, he is not required to determine in advance who may be the owner in fact — a difficult and hazardous thing to attempt in many cases. By describing the name used in the tax records when the tax was assessed, and by so directing the notice, he may require all interested persons to take notice. The notice is not for the purpose of acquiring jurisdiction of any particular person, but rather of the property only, and when the assessment record is identified and the notice clearly and properly specifies the name used in that record as owner, then the real owner, who is charged with knowledge of who was the tax record owner, must take notice that the proceeding affects his land. It therefore becomes immaterial whether the person named as the tax record owner be living or dead at the time. The purpose of using his name is simply to identify a record upon which the proceeding is founded, and of the existence of which the real owner must legally know. The notices in the foreclosure suits in question were directed to two persons who were dead, and who were therefore not the real owners at the time. Inasmuch as neither the tax record owner nor the real owner was named, there was no process upon which the court was authorized to proceed.

Respondents, however, contend that the judgment was right in this case, for the reason that appellants did not show a deraignment of their title from the United States government. The court found, however, that the property was regularly distributed by probate proceedings, and that the appellants have acquired the property so distributed. We think the distribution of the property by the probate court to the heirs of the deceased Ordway, from whom appellants derive title, was such a judicial determination as must be accepted as evidence of some title. It is a higher class of proof than would be a mere deed from an individual grantor who might be a stranger to the title, and we think it shows sufficient title to enable the holder thereof to ask the removal of a cloud created by court proceedings not founded on jurisdictional process. The probate proceedings were upon the estate of the same person who owned the land when the assess-ment was made through which respondents claim. Both, therefore, claim title from a common source, and the proof was sufficient to enable appellants to prosecute the action against these respondents.

The record shows that before the commencement of this action all taxes, penalties, interest, and costs were tendered to respondents, as provided by law. The judgment is, therefore, reversed and the cause remanded with instructions to enter judgment for appellants as prayed in their complaint, upon their paying into court the amount of the tender for the use and benefit of the respondents.

Rudkin, Fullerton, Mount, Root, and Crow, JJ., concur.