26 Wn.2d 716, E. R. TURPEN v. MOSE JOHNSON et al.
[No. 29909. En Banc. Supreme Court December 19, 1946.]
E. R. TURPEN al., Appellants, v. MOSE JOHNSON et al.,
Respondents.«1»

"The second contention made by appellants is that, as the deed given by the town was not signed by its treasurer as commanded by statute, and was therefore void upon its face, its execution, delivery, and recording was not sufficient to start the running of the statute of limitations.

"`There is great conflict of authority as to whether a deed which is void on its face will give color of title. Many decisions hold that such deeds do not give color of title. But the weight of authority is to the effect that a deed void on its face may give color of title as effectually as though the

722 TURPEN v. JOHNSON. [26 Wn. (2d)

deed was regular on its face and void for reasons dehors the instrument.' 2 C. J. 176, § 338.

"`There is no doubt that a deed fair on its face constitutes color of title, no matter what defect may really exist in the proceedings; but it has been held that a deed void on its face would not amount to color of title. The weight of authority and reason is, however, to the effect that whether the deed be void on its face or not, if it is a deed, and of such a character that an ordinary purchaser unskilled in the learning of the law might believe it to be a good conveyance, it will be sufficient.' 2 Blackwell on Tax Titles (5th ed.), 805, § 861.

"We are unable to apprehend why distinction should be drawn between a fact appearing upon the face of a deed which shows a defect in title, and a fact existing outside the deed having the same effect, which the purchaser is equally bound to notice.

"The statute, § 9394-1, does not contain language which shows, or in any way tends to show, that the legislature contemplated difference in the legal consequences attendant upon one or the other of these possible defects in the purchaser's title. The statute, in fixing the limit of three years in which action may be instituted, makes no reference to the form or contents of the deed. It does not state that the tax deed must be valid upon its face. It provides in plain, concise language that the action to set aside or cancel `any deed . . . must be brought within three years from and after the date and issuance of such deed.'

"No logical reason can be advanced for establishing a distinction between defects which are apparent upon the face of the deed itself and defects appearing in the record of the proceedings anterior to the issuance of the deed.

"The trial court was correct in holding that the action could not be maintained, and the judgment is accordingly affirmed."

In Eagles v. General Electric Co., 5 Wn. (2d) 20, 104 P. (2d) 912, this court, speaking at p. 34, said:

"But we have held, in substance, that a tax deed, under our statutes, institutes a new and complete title, subject to defeasance only by a suit by the former owner which must be brought within three years. It is said in Sparks v. Standard Lumber Co., 92 Wash. 584, 586, 159 Pac. 812:

"`The legislature has for twenty-five years, by the clearest expressions, made a tax foreclosure a proceeding in rem,

Dec. 1946] TURPEN v. JOHNSON. 723

and a tax title a favored title as contradistinguished from the ordinary conception of a tax title - a title tainted with the suspicion of illegitimacy. In keeping with its purpose, it has even made a title issued under a void tax foreclosure a good title if not attacked within three years. [Citing seven former decisions.]

"`To this purpose the courts have given liberal response. So that, with the passing of the old rule, it may fairly be said that a tax title is no longer nullius filius, but is equivalent to a decree quieting the title in the purchaser as a grant from the sovereign state. [Citing four former decisions.]' (Italics ours.)

"We hold, therefore, that the title to this property, the tax deeds not having been attacked within three years, became absolute in the purchaser or his transferees, as to one portion on October 27, 1926, and as to the other, on October 25, 1927."

See, also, Cordiner v. Dear, 55 Wash. 479, 104 Pac. 780; Huber v. Brown, 57 Wash. 654, 107 Pac. 850; Baylis v. Kerrick, 64 Wash. 410, 116 Pac. 1082; Fleming v. Stearns, 66 Wash. 655, 120 Pac. 522; Savage v. Ash, 86 Wash. 43, 149 Pac. 325; Keller v. Davis, 93 Wash. 336, 160 Pac. 946; Porter v. Burkley, 112 Wash. 282, 191 Pac. 799; Jorgensen v. Thurston County, 145 Wash. 282, 259 Pac. 720.

In considering proposition (2), we are faced with a question which, for many years, has provided more than its share of vexatiousness, i. e., what rights, legal, equitable, or otherwise, has a vendee of property under an executory contract if the title which he hopes to acquire, or the property which is the subject matter of the contract, is placed in danger?

In 1925, this court decided three cases which constitute the monumental landmarks around which the storm of controversy has continued to spend its fury. They are Ashford v. Reese, 132 Wash. 649, 233 Pac. 29; Holt Mfg. Co. v. Jaussaud, 132 Wash. 667, 233 Pac. 35, 38 A. L. R. 1312; In re Kuhn's Estate, 132 Wash. 678, 233 Pac. 293. A rule common to each of them was laid down that an executory contract for the sale of either real estate or personal property created no title, legal or equitable, in the vendee.

Ashford v. Reese, supra, related to the division of the proceeds of a fire insurance policy, following the destruction

724 TURPEN v. JOHNSON. [26 Wn. (2d)

of the constructed improvements upon real estate which, at the time, was being sold under executory contract.

Holt Mfg. Co. v. Jaussaud, supra, adhered to the same ruling when applied to the proceeds of a fire insurance policy covering personal property, consisting of farm machinery, being purchased on conditional sales contract.

In re Kuhn's Estate presented for solution the problem of whether or not property being purchased under contract by a married person became community property following such purchaser's demise. This is the case upon which appellants in the instant case strongly rely. Were it not for the modification of the original rule, as laid down in our later decisions, the language in the Kuhn case would justify appellants' position.

Without reviewing all of the authorities on the subject which would unnecessarily extend this opinion to extreme and undue length, it may safely be stated that the modern rule of this court is clearly and definitely expressed in Lawson v. Helmich, 20 Wn. (2d) 167, 146 P. (2d) 537, 151 A. L. R. 930. That case, on appeal from Yakima county, involved the destruction of fruit trees upon a tract of land which was being purchased by the plaintiff on executory contract. So far as pertinent to our inquiry, the meat of the opinion in Lawson v. Helmich is found in the following language:

"Without attempting to say just what the effect of our decisions rendered subsequent to Ashford v. Reese, supra, in so far as the questions therein involved are concerned, may be, we are satisfied that in subsequent decisions we have committed ourselves to the rule that the vendee under a forfeitable executory contract has a right in the land, which, coupled with possession, is sufficient to entitle him to bring an action for damages for injury to the land caused by removal of trees, as in the instant case."

In State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 280 Pac. 350, there was presented the question of what rights, if any, a vendee might have under a forfeitable executory real estate contract of purchase. The term "real property," in the light of the attachment statutes,

Dec. 1946] TURPEN v. JOHNSON. 725

is therein defined. Judge Main, in that opinion, used the following language:

"It will be observed that the statute uses the words, `real property,' which have a comprehensive meaning. They include not only land and whatever is erected or growing thereon, or affixed thereto, but also rights issuing out of, annexed to and exercisable within or about the land. In Bouvier's Law Dictionary, `real property' is referred to as follows:

"`Land, and generally whatever is erected or growing upon or affixed to land. Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10. Also rights issuing out of, annexed to, and ercisable within or about the same . . .'

"Under the contract above mentioned, the Josephs had a right to the possession of the land, the right to the dominion and control thereof, the right to care for, cultivate and harvest the crops grown thereon. These are rights which do not rise to the dignity of title, either legal or equitable, but which are annexed to and are exercisable with reference to the land, and therefore come within the designation of `real property.'

"The case of Ashford v. Reese, 132 Wash. 649, 233 Pac. 29, and the cases upon which that case is based, hold that the purchaser under a contract such as the one involved In this case has no title, either legal or equitable, to the land, until the full consideration has been paid. It was not held in Ashford v. Reese, or in any of the cases upon which that case is based, that a purchaser under such a contract as is here involved did not have any rights thereunder which were annexed to or exercisable with reference to the land."

In Vandin v. McCleary Timber Co., 157 Wash. 635, 289 Pac. 1016, John A. Scully, Inc., entered into an executory contract for the sale of lots in Thurston county to Vandin and wife. The record did not disclose whether they ever entered into possession of the land. The contract was never recorded. Thereafter, Scully assigned his contract to Maury, who collected the monthly installments due thereon from Vandin. In the meantime, McCleary Timber Company secured a judgment against Scully, Inc., and the lots in question were sold on execution sale to the McCleary Timber Company, which received a sheriff's deed. Thereafter,

726 TURPEN v. JOHNSON. [26 Wn. (2d)

Vandin and wife commenced an action to quiet title to the two lots. This court held:

"True, we said in Ashford v. Reese, 132 Wash. 649, 233 Pac. 29, that an executory contract to convey real property vested `no title or interest, either legal or equitable, to the vendee' until the contract is fully performed. But we did not hold that an executory contract for the sale of land vested no right in the vendee which the court will enforce at the suit of the vendee. Pratt v. Rhodes, 142 Wash. 411, 253 Pac. 640, 256 Pac. 503. Such contracts have all the validity that any other executory contract has which is duly and regularly executed by parties competent to contract. The respondent vendees have substantial rights, among which are the right of possession and the right to acquire title in accordance with the terms of the contract. If equity require, the courts will specifically enforce such contracts.

"`. . . neither in the Ashford case or elsewhere has this court said that a purchaser in possession under an executory contract has no rights. Undoubtedly such purchaser does have a right of possession and a right to acquire title in accordance with the terms of the contract. Such rights, though not amounting to title, are substantial rights such as one having notice and knowledge is bound to respect. The doctrine of notice is not confined to the protection of titles, but extends to all substantial rights, as a reference to the law of negotiable instruments will clearly show.' Oliver v. McEachran, 149 Wash. 433, 271 Pac. 93.

"See, also, State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 280 Pac. 350."

Lawson v. Helmich, supra, likewise calls attention to In re Horse Heaven Irr. Dist., 11 Wn. (2d) 218, 118 P. (2d) 972, wherein it was held that vendees under executory contracts to purchase land within an irrigation district were entitled, as property holders, as that term was defined by statute, to share in the distribution of the assets of the corporation after its dissolution.

[2] While none of the cases cited present the exact factual situation contained in our present inquiry, the logic and reasoning of the decisions cited lend irresistible force to the conclusion that the vendee under an executory contract, though not possessed of title or any fractional part of title or even of equitable interest, has a right to

Dec. 1946] TURPEN v. JOHNSON. 727

protect the property and the title which he anticipates he will acquire therein to the extent of combating trespass and waste on the premises, and commission of damage thereon; that he likewise has the right to prevent the extinction of title by levy of execution thereon, as in Vandin v. McCleary Timber Co., supra.

If the vendee under such a contract may contest execution and attachment and physical damage, certainly he may contest a suit to quiet title by interposing any defense thereto which the law permits. In this case, respondent Johnson's main defense to defeat appellants' suit to quiet title was the statute of limitations. His was the title affected by Turpen's action, for if Turpen prevailed Johnson would never acquire a title and would be dispossessed of the land which, under his contract, he had a right to purchase.

This view is in keeping with the somewhat prophetic language used by Dean Alfred J. Schweppe, of the University of Washington Law School, in his very excellent discussion of Ashford v. Reese, supra, published in 2 Wash. L. Rev. 10, November, 1926. He said:

"The established doctrine of equity and the one that is regarded by the overwhelming weight of authority as in accord with sound policy and practice, is that the vendee under a forfeitable executory contract acquires an interest in land, upon which a judgment is a lien, which may be attached, and upon which execution may be levied, and which is devisable by the vendee, and descendible to his heirs as real estate. If our Court would now so hold (which it is not too late to do in view of the conflicting holdings in our decisions, and the different views which different members of the present Court have taken at different times)the rule in this state would again be in accord with the virtually uniform current of authority elsewhere and make it unnecessary for the legislature to intervene."

This review was followed by an equally comprehensive discussion of the same subject by Mr. George D. Lantz of the Spokane bar. His article is entitled "RIGHTS OF VENDEES UNDER EXECUTORY CONTRACTS OF SALE," published in 3 Wash. L. Rev. 11, March, 1928. He said:

728 TURPEN v. JOHNSON. [26 Wn. (2d)

"While confusion of terms has resulted in incorrect applications of the rule that no equitable or legal interest in the property passes to the vendee under an executory contract to sell, in the Schaefer, Ashford and Holt Manufacturing Company cases, and unfortunate language was used in the dissenting opinions, there is no reasonable probability of the court holding that the vendee's contractual rights in the property will not be fully protected by the courts."

[3, 4] Proposition (3) has to do with the force and efficacy of the reference description of the premises in question, as used in the foreclosure proceeding and in the contract to the Johnsons. It was designated as "Assessor's Tax Lot No. 22 of Niels Hendrichsen D.L.C." The assessor's testimony clearly indicates that assessor's tax lot No. 22 of Niels Hendrichsen's donation land claim related to the real estate described in appellants' deed from Christina Schmeer and included the language "corner between sections 14 and 23." This was the true description on the records of the assessor and the treasurer of Clark county and was, therefore, the description to which the reference phrase "Assessor's Tax Lot No. 22," as used in the foreclosure proceeding and in the contract between Clark county and Johnson, clearly pointed.

The controlling rule is well stated in Wingard v. Pierce County, 23 Wn. (2d) 296, 160 P. (2d) 1009, in the following language:

"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 could, from an examination of the foreclosure proceedings, locate the property sought to be foreclosed. . . .

"Conversely, if the description affords an intelligent means of identifying the property and does not mislead, it is sufficient."

In the Wingard case, language is quoted from our opinion in Ontario Land Co. v. Yordy, 44 Wash. 239, 87 Pac. 257, which we feel has a direct bearing upon our present inquiry. It is, accordingly, repeated:

"`It is a well-established principle of law that a description in a deed, or other instrument affecting title to real

Dec. 1946] TURPEN v. JOHNSON. 729

estate, is sufficient if it affords an intelligent means for identifying the property, and does not mislead. In other words, if a person of ordinary intelligence and understanding can successfully use the description in an attempt to locate and identify the particular property sought to be conveyed, the description answers its purpose and must be held sufficient. Mr. Jones, at section 323 of his treatise on the Law of Real Property in Conveyancing, says:

"`"The first requisite of an adequate description is that the land shall be identified with reasonable certainty, but the degree of certainty required is always qualified by the application of the rule that that is certain which can be made certain. A deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it was intended to convey. The office of a description is not to identify the land, but to furnish the means of identification. The description will be liberally construed to afford the basis of a valid grant. It is only when it remains a matter of conjecture what property was intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty in the description of parcels."'

"`When real estate is listed and assessed for taxation, it is ordinarily necessary that the assessment roll shall contain a reasonably accurate description of the tract sought to be taxed. The object of this requirement is stated by writers on taxation and tax titles to be three-fold, (1) it is designed to inform the owner of the claim upon his property; (2) it is designed that intending purchasers may know what property will be offered for sale in the event of the taxes becoming delinquent; and (3) it is also the intention that under such description a proper deed may be executed to the purchaser. Cooley, Taxation (2d ed.), p. 405; Black, Tax Titles (2d ed.), § 112.'"

In Napier v. Runkel, 9 Wn. (2d) 246, 114 P. (2d) 534, 137 A. L. R. 175, this court held:

"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." (Italics ours.)

730 TURPEN v. JOHNSON. [26 Wn. (2d)

In 51 Am. Jur. 904, § 1035, under the topical subject heading "Taxation," the following observation is made:

"The purpose of requiring a description of the property in the notice of a tax sale or of tax foreclosure proceedings is two fold: (1) to warn the owner that his property is to be sold, so that he can prevent the sale by paying his taxes, and (2) to advise prospective purchasers, so that they can investigate the property and determine whether they want to bid; and such notice must ordinarily describe the property to be sold, with reasonable certainty, so that a person of ordinary intelligence, from an examination of the foreclosure proceeding, can locate the property sought to be foreclosed. The property should be so described as to admit of its identification by recourse to official records, or at least by some means which may be referred to as common or general knowledge, concerning which accurate information may easily be obtained. . . .

"Whether the description in a tax notice is sufficient is a question of fact. Ordinarily, if the description is sufficient to notify the owner, it is sufficient to notify the public. While the description should be such as to enable both owner and bidder from its terms to locate with substantial certainty the land to be sold, it need not be so detailed as to point out visually its precise boundaries so that an utter stranger unacquainted with the locality and ignorant of the neighbors could find it without inquiry. . . .

"In some cases, descriptions by lot or block numbers have been held insufficient in the absence of any reference to any map or plat on which such lot or block numbers could be found, but in other cases references to lot and block numbers have been held to describe the land sufficiently, notwithstanding failure to designate the map or plat on which the property was shown according to the numbers by which it was described in the notice."

And again, in § 1159, at p. 999, under the discussion "Application to Defective Descriptions," we find the following:

"Although there is some authority to the contrary, the general rule is that the special or short limitation periods provided for the purpose of barring attacks on tax sales are not applicable to protect tax titles based on such sales, if the description in the tax assessment or tax deed does not describe the property purported to have been sold for taxes, or the description is so vague, uncertain, or erroneous that the property in question cannot be identified. Such statute

Dec. 1946] TURPEN v. JOHNSON. 731

has been held not to be applicable where the description of the land in the tax deed varies materially from that in the assessment. On the other hand, a defective description in a tax assessment or tax deed may be protected by the limitation provision applicable to tax titles where such description is sufficient reasonably to identify the property sold for taxes, or is sufficient to furnish the means of identification, evidence aliunde or dehors the record being admissible for that purpose."

See, also, Jackson v. Irion, 196 La. 728, 200 So. 18, 133 A. L. R. 566.

Black on Tax Titles (2d ed.) 140, § 112, cited with approval in the Yordy case, supra, and again in the Wingard case, states:

"But it is very difficult to deduce from the authorities a satisfactory answer to the question, what is a sufficient description? Each case will be largely governed by its own circumstances, keeping in view, however, the objects for which this requirement exists.