King County v. Lesh

Millard,- J: This action was instituted to secure a tax foreclosure decree against certain property described on assessment rolls, by the county assessor, by lot and block numbers according to an unrecorded plat. The decree of foreclosure was entered December 29, 1938. The marital community of Newton P. Lesh and Keith M. Lesh filed a petition and motion February 5, 1945, to vacate *415 the tax foreclosure of certain property which they alleged they owned and to cancel a deed issued as a result thereof. Kang county filed an answer in which it admitted that the petitioners had not theretofore appeared in the foreclosure action, which was an action in rem, and that, in the action to secure a tax foreclosure decree, the property of petitioners was described as certain lots and blocks in an unrecorded plat. As an affirmative defense, the county pleaded that the property was part of a plat on file in the office of the county assessor for King county and had been purchased under that description by the petitioners, who knew both actually and constructively that the taxes thereon had been delinquent. Petitioners demurred to the answer and affirmative defense on the grounds that the court had no jurisdiction of the subject matter of the action, and that the answer and affirmative defense did not state facts sufficient to constitute a defense to the petition. Petitioners also filed a motion to strike the county’s answer and affirmative defense or, in the alternative, to require the county to make its defense more definite and certain. Hearing on the demurrer and the motion to strike resulted in entry of an order that the demurrer of the petitioners to the answer and affirmative defense be sustained. The court stated that the sustaining of the demurrer obviated necessity of passing on motion to strike the affirmative defense and to make it more definite and certain. King county declined to plead further and elected to stand on its answer and affirmative defense, whereupon judgment was entered granting the petition to vacate the tax foreclosure decree, which was adjudged to be void. By the judgment, the county assessor was required to place the property in controversy on the tax rolls of King county, and to assess taxes thereon for 1946 and for all the years for which taxes are unpaid. The judgment provided that, until there is a delinquency upon such reassessment, no interest shall be charged for the years for which the taxes on the property are delinquent. The first question presented for determination is whether the trial court erred in sustaining respondents’ demurrer *416 to appellant’s answer and affirmative defense to the petition to vacate the decree in the tax foreclosure proceeding, the answer and affirmative defense admitting that the judgment rendered against the property of respondents was in rem and that the property was described in that proceeding as certain lots and blocks in an unrecorded plat, and alleging that respondents had purchased the property under that description. The trial court did not err in sustaining the demurrer. No jurisdiction was acquired over the res in the foreclosure proceeding, and the decree entered therein is void. We held in Napier v. Runkel, 9 Wn. (2d) 246, 114 P. (2d) 534, 137 A. L. R. 175, that a tax foreclosure by county is a proceeding in rem and jurisdiction of the res must clearly appear; and, in such a proceeding, a description of the property involved by reference to an unrecorded plat is insufficient to confer jurisdiction upon the court to proceed against the property. In the case cited, the property involved was owned by one Fred S. Gilbert. Taxes were levied and assessed by describing the land on the tax rolls with reference to an unrecorded plat of Gilbert’s Avion City addition to Seattle. The taxes were unpaid. The property was included in a regular tax foreclosure proceeding throughout which the property was. described with reference to the same unrecorded plat, the descriptions in the notice and the decree of foreclosure being the same descriptions as were used on the tax rolls. A tax deed was issued to King county, which in turn sold the property under contract to James L. Napier. Prior to the tax foreclosure, the city of Seattle acquired a lien against the property for unpaid local improvement assessments, the assessment rolls of which described the land not only with reference to the unrecorded plat but by a proper description by metes and bounds. An action was commenced by Napier as a contract vendee and King county as owner against defendants Runkel and Sharp as the executrix and executor of the estate of Gilbert, the original owner, and as the heirs of Gilbert and against the city of Seattle. In the *417 action it was sought to quiet title in King county and Napier as vendee. The plaintiffs pleaded their tax title. Defendants’ demurrer was sustained and the action dismissed. The judgment was affirmed on appeal. We announced the general rule is that, in order to divest the owner’s title through a tax foreclosure, the property must be identified in the proceedings and described with reasonable certainty so that a person of ordinary intelligence, from an examination of the foreclosure proceedings, could locate the property sought to be foreclosed. We said: “The tax foreclosure proceedings afforded no sufficient means of locating the property, nor did they convey any information as to how the property might be located. The foreclosure was an action in rem, and the mere reference to an unrecorded plat was insufficient to vest the court with jurisdiction to proceed.” Napier v. Runkel, supra, is controlling. Mere reference to an unrecorded plat is insufficient to vest the court with jurisdiction in an in rem proceeding such as a tax foreclosure. In an action in rem, a decree that is void on its face may be attacked by anyone having a direct interest in the title to the property involved. See, also, King County v. Rea, 21 Wn. (2d) 593, 152 P. (2d) 310, and Wingard v. Pierce County, 23 Wn. (2d) 296, 160 P. (2d) 1009. Counsel for appellant insist that knowledge on the part of respondents, owners of the real property involved herein, that their taxes were delinquent, is a defense to their petition to vacate the tax foreclosure decree. With this view we cannot agree. Knowledge by petitioners that their taxes were delinquent would not be a defense to a petition to vacate a void tax foreclosure decree. The tax foreclosure proceeding was an action in rem, and no jurisdiction was acquired by the court in that proceeding; hence, the matter of knowledge is not material. In Matthews v. Morrison, 195 Wash. 288, 80 P. (2d) 856, which was an action to set aside a tax deed on the ground that the description was too indefinite to confer jurisdiction *418 upon the court in the foreclosure proceeding, we said that it was not material whether the owner of the property involved in that action, who died subsequent to entry of the judgment by the trial court, was orally warned by the deputy county treasurer that his property would be included in the foreclosure proceedings; that his knowledge of the proceedings would not give to the court jurisdiction in the foreclosure proceeding. It is unnecessary to review the many authorities cited by appellant and respondents, as the cases we have cited are controlling. The judgment is affirmed. Driver, C. J., Beals, Steinert, Blake, Robinson, Simpson, and Jeffers, JJ., concur.