City of Everett v. Morgan

Bridges, J. A demurrer to the complaint was sustained. The plaintiff having elected to not further plead, judgment was entered dismissing the action. The question before us is the sufficiency of the complaint. It alleges that the city of Everett had previously formed a local improvement district, made improvements therein and charged the cost thereof to the property in the district, and had issued bonds against the funds; that, as to certain designated lots, the assessments were delinquent, and that a large number of the bonds had not been paid and there was no money in the fund to pay them. It also alleged that, sometime prior to the commencement of this action, but after the local assessments had become delinquent, the treasurer of Snohomish county, in which the city of Everett is located, had issued to that county a general *227 certificate on account o£ delinquent taxes against the property involved in this action and that the county had previously brought suit to foreclose its certificate; that such foreclosure was had and, there being no bidders, the property was struck off to the county, and that subsequently it sold the property involved here to private individuals, who are the other defendants in the case. The complaint contained this further allegation: “Said purported foreclosure, conveyances and sales were wholly void and ineffectual for any purpose whatsoever for the reason that no summons was served upon the then record owners of the premises above described, nor was any notice of any sale given to nor served upon the said record owners, nor was any copy of the complaint in said tax foreclosure served upon the treasurer of Everett, as by law provided. On account of the neglect and failure of said Snohomish county to make, serve and give the notice in said foreclosure, as hereinabove recited, neither this plaintiff nor the holders of bonds in said local improvement district had notice or knowledge of said tax foreclosure and sales.” The prayer is very broad; it seeks to have the county foreclosure declared void and the sale thereunder set aside, and also to vacate and set aside the sale and deeds which had been made by the county to the individual defendants, and to have the lien for local improvements adjudged a first lien on the property and superior to any rights of all the defendants; it also seeks foreclosure of the local improvement liens and to have the property sold free and clear of any interest whatsoever of any of the defendants. The argument centers around the allegations in the complaint that the county’s foreclosure was defective in that no notice of the sale thereunder was given the record owners and that no copy of the complaint was *228 served on the treasurer of the city of Everett, as it is claimed the law requires. The complaint anticipates the defense of the county and of the various private individuals to whom it had previously sold the lands. Manifestly, it was so drawn with a view of being able to finally determine certain legal questions by means of a demurrer to it. The county and the various defendants separately demurred. If we look at this question, as we must, from the viewpoint that originally the county had a senior and superior lien on this property, the questions involved will more readily lend themselves to solution. (1) The appellant argues that, because the property owner was not given notice of the county sale, the whole proceeding was void. Section 11298, Rem. Comp. Stat. [P. C. § 6998], provides that, before -the sale is had, the county treasurer “. . . shall notify the record owner . . . of the pending sale, . . .” We have held that, as against such owner, the sale is invalid unless this notice is given. Riley v. Varian, 123 Wash. 436, 212 Pac. 545. But this is an objection that can be raised only by the owner. The city of Everett was not the owner and does not represent him. So far as its interests are concerned, the sale was valid without the notice, which was intended to be for the protection of the owner. In so far as the city is concerned, the county foreclosure cut off all rights of the landowners, and the county’s sale to the other defendants vested in them all the right, title and interest of the original owners of the property. It is as though a first mortgagee had foreclosed his mortgage by bringing into court the owner of the lands and other persons who might be interested therein, but not making the second mortgagee a party thereto. In that case the latter could not bring suit to foreclose his mortgage and therein seek to set aside and declare null and void *229 the foreclosure made by the first mortgagee and the sale thereunder. It would be simply an instance of a valid foreclosure without cutting off the interest of the second mortgagee. It is plain to us that, in so far as the complaint here seeks to set aside the county’s foreclosure and the sales made by it to the other respondents, it fails to state a cause of action. The question then arises as to whether the complaint states a cause of action for the foreclosure of the local assessment liens. This question is answered by the answer to the further question, viz.: Did the county’s foreclosure adjudicate and cut off the city’s local assessment lien? The respondents answer this query in the affirmative. This argument is based on § 11295, Rem. Comp. Stat. [P. C. § 6995], which is with reference to foreclosure by a county of certificates of delinquency for general taxes, and provides that in such an action “. . . the same proceedings shall be had a-s when [the certificates are] held by an individual: Provided, That summons may be served or notice given exclusively by publication in one general notice, describing the property as the same is described on the tax rolls . . . and the publication of such notice shall be sufficient service thereof on all persons interested in the property described therein . . . and all persons owning or claiming to own, or having or claiming to have an interest therein, are hereby required to take notice of said proceeding and of any and all steps thereunder.” It is stated that the published summons as required by this section was sufficient to bring the city into the case. On the other hand, the appellant insists that its rights were not cut off by the county’s foreclosure because its treasurer was not served with a copy of the complaint as required by § 9393, Rem. Comp. Stat. [P. C. § 1028], which *230 forms a part of our local assessment statutes and which, so far as material in this discussion, reads: “The holder of any certificate of delinquency for general taxes shall, before commencing any action to foreclose the lien of such certificate pay in full all local assessments or installments thereof outstanding against the whole or any portion of the property included in such certificate of delinquency, or, he may elect to proceed to acquire title to such property subject to certain or all local assessments a lien thereon, in which case the complaint, decree of foreclosure, order of sale, sale, certificate of sale and deed shall so state. . . . “In any action to foreclose any lien for general taxes upon any property a copy of the complaint shall be sensed on the treasurer of the city or town within which such property is situate within five days after such complaint is filed. In any case where any property shall be struck off to or bid in by the county at any sale for general taxes, and such property shall subsequently be sold by the county, the proceeds of such sale shall first be applied to discharge in full the lien or liens for general taxes for which the same Tfras sold, and the remainder, or such portion thereof as may be necessary, shall be paid to the city to discharge all local assessment liens upon such property, and the surplus, if any, shall be distributed among the proper county funds. ” [Italics ours.] We have italicized the part upon which appellant particularly relies. The section last quoted became the law in 1911, and § 11295, in so far as it affects the questions involved here, became the law in 1901. It was amended in 1917, but only with reference to the price which should be charged for the publication of the summons. It is our opinion that the two sections quoted must be read together, and that before the county’s foreclosure can cut off the rights of the city as represent *231 ing the liens of the local assessments, a copy of the complaint must be served on the city treasurer. Respondents greatly rely on Maryland Realty Co. v. Tacoma, 121 Wash. 230, 209 Pac. 1. There the city of Tacoma had issued to certain individuals certificates of delinquency on account of certain local improvement assessments. Thereafter there was issued to the county of Pierce, in which Tacoma is located, certificates of delinquency based upon the general county grid state taxes. This last certificate was foreclosed and the property bought in by the county and later by it sold into private hands. We held that that portion of § 9393, Rem. Comp. Stat., which requires the holder of any certificate of delinquency for general taxes to pay the prior delinquent assessments or foreclose subject thereto had reference only to foreclosure of certificates of delinquency issued to private individuals and not to certificates issued to the county. The reasons given were that it was manifest from a reading of the various statutes with reference to taxation that the lien of general taxes while in the hands of the county was in all respects senior to local assessments, and that it was not the intention of the legislature to hamper the operation of the county and state governments by requiring them to pay local assessments in order to collect their own taxes. That case did not involve the question here. Indeed, there the county actually served a copy of its complaint on the city treasurer. Section 9393, Rem. Comp. Stat., is divided into two paragraphs. It is in the first that it is provided that the owner of a certificate of delinquency for general taxes shall either pay outstanding local assessments or foreclosures subject thereto, and it was this provision which in Maryland Realty Co. v. Tacoma, supra, we held applied only to private owners of certificates of *232 delinquency for general taxes and not to counties. It is in the second paragraph of the section that it is provided that, in any action to foreclose any lien for general taxes, a copy of the complaint must he served on the city treasurer. We are of the opinion that this second paragraph includes counties foreclosing certificates issued to them and requires that, in a foreclosure by the county, service of a copy of the complaint must be made on the city treasurer. That paragraph makes direct reference to county foreclosures and provides for the disposition of the moneys which come to the county as a result of the private sale of property which it shall buy in at the tax foreclosure sale. To hold that the provision with reference to serving notice on the city treasurer applies to individuals only and not to counties would be to substantially destroy the legislative purpose. No particular good could come from requiring only private holders of certificates to give the notice, because they must, in any event, either pay the local assessments or foreclose subject thereto; but to require the county to give notice to the city would serve a useful purpose because its foreclosure would have the effect of entirely cutting off the local assessments. If the county must give notice to the city, the latter is thereby given an opportunity to protect itself by paying the tax or defending against it. It is, therefore, our opinion that the legislature intended that, in all foreclosures by the county of tax certificates of delinquency issued to them, they must serve notice on the city treasurer as provided in the second paragraph of § 9393, supra. This not having been done (according to the allegations of the complaint), the city’s lien stands unadjudicated and it may maintain this action to enforce it. *233 (2) The respondent contends that, in any event, the judgment must he affirmed because the complaint fails to allege a tender of the taxes due the county, and that such a tender is a necessary preliminary to an action to foreclose a local assessment. This contention is based on § 956, Rem. Comp. Stat. [P. C. § 8075], which reads as follows: “In all actions to enjoin the sale of any property for taxes, in all actions to enjoin the collection of any tax, and in all actions for the recovery of any property sold for taxes, the complaint must state and set forth specially in his complaint the tax that is justly due, with penalties, interest and costs, the tax alleged to be illegal, and point out the illegality thereof; that the taxes for that and previous years have been paid; and when the acoion is for the recovery of lands or other property sold for taxes against the person or corporation in possession thereof, that all taxes, penalties, interest, and costs paid by the purchaser at tax sale, his assignees or grantees, have been fully paid or tendered, and payment refused.” Appellant’s action was one to foreclose a delinquent local assessment, and was not one for the recovery of lands or other property sold for taxes. It was not necessary under this section for the appellant to make a preliminary tender of taxes. (3) It is contended by respondent Dearie that, since the present action was not instituted against him until more than three years after the date of the tax deed upon which he claims, he is barred by § 162, Rem. Comp. Stat. [P. C. § 8167], which provides that actions to cancel tax deeds must be instituted within three years from the date of the deed. Section 9394, Rem. Comp. Stat. [P. C. § 1029], provides as follows: “An action to collect any special assessment or installment thereof, for local improvements of any kind, or to enforce the lien of any such assessment or installment, whether such action be brought by a municipal *234 corporation or by the holder of any certificate of delinquency, or by any other person having the right to bring such action, shall be commenced within ten years after such assessment shall have become delinquent, or within ten years after the last installment of any such assessment shall have become delinquent when said special assessment is payable in installments.” This being an action for the foreclosure of a special assessment, and being brought within ten years after the last installment becomes delinquent, so far as the city of Everett is concerned, its right to foreclose is the same as though there had been no foreclosure and sale by the county. Section 162, supra, is applicable to actions to cancel tax deeds. We think the complaint states a cause of action for the foreclosure of the lien of the local assessments, and that the court erred in sustaining a demurrer thereto and entering judgment. The judgment is reversed, and the cause remanded with directions to overrule the demurrer. Mitchell, Fullerton, and Main, JJ., concur.