SMITH v. CRAVER. 243
Jan. 1916 Opinion Per PARKER, J.
[No. 12792. Department Two. January 11, 1916.]
EFFIE E. SMITH et al., Appellants, v. L. H. CRAVER et al.,
Respondents. «1»
MUNICIPAL CORPORATIONS - LOCAL IMPROVEMENTS - DELINQUENT
ASSESSMENTS - SUMMARY FORECLOSURE - DEED - REDEMPTION - NOTICE TO
"OWNER." There must be strict compliance with Rem. & Bal. Code,
SS 7808, providing, upon the summary sale of premises for
delinquent local improvement assessments, that the notice of
application for a deed be served personally upon the "owner,"
which means the real owner of the property, unless something has
been done to work an estoppel; hence notice by publication, to the
holder of the record title under an absolute deed intended as a
mortgage is not sufficient to cut off the owner's right of
redemption, where she had been in possession for more than ten
years, was the record owner when the assessments were levied, her
name appeared on the assessment rolls, and she lived in the
immediate vicinity and could have been found if diligence had been
used.
Appeal from a judgment of the superior court for King
county, Gilliam, J., entered November 16, 1914, upon
sustaining a demurrer to the complaint, dismissing an action
to set aside tax deeds, tried to the court. Reversed.
Barleer & Rozema, for appellants.
A. C. MacDonald, for respondents.
PARKER, J. - The plaintiffs, Effie E. Smith et at., seek to
have set aside two tax deeds issued to the defendant L. H.
Craver by the city treasurer of the city of Seattle, for lots
11 and 12, respectively, of block 3, Evans & Blewett's
addition to the city of Seattle. The deeds were issued upon
delinquent eminent domain local improvement assessments and
certificates of delinquency issued therefor, and are claimed
by the defendants to rest upon valid proceedings regularly
had under Rem. & Bal. Code, SS 7808 (P. C. 171 SS 111),
relating to such delinquent assessments. The defendant L. H.
Craver demurred to the plaintiffs' complaint upon the ground
«1» Reported in 154 Pac. 156.
244 SMITH v. CRAVER.
Opinion Per PARKER, J. 89 Wash.
of insufficiency of facts to constitute a cause of action. The
demurrer was by the court sustained, and the plaintiffs,
electing to not plead further, judgment of dismissal was rendered
against them, from which they have appealed.
The controlling facts may be summarized from the
allegations of the complaint as follows: Appellant Effie E. Smith
was the actual and also the record owner of the lots at the
time of, and long prior to, the issuance of the delinquent
certificates here involved. Her name appeared upon the
assessment rolls as the owner of the lots, and her name also
appeared on the delinquent certificates as the owner of the lots.
In November, 1912, after the issuance of the delinquent
certificates, George E. Gowen became the apparent record owner
of the lots. While the conveyance to him was by deed
absolute in form, it was intended as a mortgage only, to secure
a loan of $445 made by him to appellant Effie E. Smith.
The record of this deed in the office of the auditor of King
county made him the apparent record owner of the lots.
In April, 1913, respondent L. H. Craver, having then
become the owner by assignment of the certificate of
delinquency against lot 11, gave notice to George E. Gowen, by
publication, of his intention to apply to the city treasurer
for a deed to that lot if not redeemed within sixty days from
the date of the first publication of the notice. In April, 1913,
M. L. Ash, the original holder and then owner of the certificate
of delinquency against lot 12, gave notice to George E.
Gowen, by publication, of his intention to apply to the city
treasurer for a deed to that lot if not redeemed within sixty
days from the date of the first publication of the notice.
Thereafter, respondent L. H. Graver became the owner of
that certificate of delinquency by assignment from M. L. Ash.
These published notices were addressed to George E. Gowen
only. They were evidently so addressed and given upon the
assumption that George E. Gowen was the owner of the lots
and the only person to whom notice of application for the
SMITH v. CRAVER. 245
Jan. 1916 Opinion Per PARKER, J.
deeds was required to be given. No other notice was given
to any one.
Thereafter, respondent L. H. Craver filed with the city
treasurer his affidavits stating, in substance, that he was the
owner of the certificates; that notice had been given by
publication to George E. Gowen; that George E. Gowen was the
record owner of the lots; "that immediately before publishing
the notice hereinafter referred to, affiant made and caused
to be made diligent search for the said George E. Gowen, and
that affiant has been unable to find him and believes that said
George E. Gowen is not now within the state of Washington,
and was not at the time of the first publication of the notice
of application for a deed;" and that all other taxes against
the lots had been paid. Respondent L. H. Craver thereupon
demanded of the city treasurer that he issue deeds to him
for the lots as holder of the unredeemed certificates of
delinquency. Thereafter, on July 8, 1913, the city treasurer
executed and delivered to respondent L. H. Craver a deed for
each of the lots, the same not having been redeemed. No
notice of any application for the deeds, or either of them, was
ever given to appellant Effie E. Smith, nor did she have any
actual notice or knowledge thereof. Thereafter, appellant
Effie E. Smith, for the purpose of effecting a redemption
from the sale of the lots, caused to be tendered to L. H.
Craver the sum of $425 in payment of the delinquent
assessments for which the certificates were issued, including
additional taxes and assessments paid by respondent Craver and
his predecessor in interest, which tender was refused. In her
complaint, Effie E. Smith offers to pay all taxes, assessments
and lawful charges to whomsoever due for the redemption of
the lots.
Touching the question of the necessity of notice to appellant
Effie E. Smith of the applications for the deeds, giving her
opportunity to redeem as owner of the lots, she alleged:
246 SMITH v. CRAVER.
Opinion Per PARKER, J. 89 Wash.
"That said plaintiff Effie E. Smith is now, and has been
for more than ten years last past, the owner in fee simple
and in possession of lots 11 and 12, block 3, Evans and
Blewett's addition to the city of Seattle, in said county, as
her separate property.
"The plaintiff Effie E. Smith is now and has been for
several years last past a resident of the city of Seattle
aforesaid, and for a long time prior to the publication of said
notice lived in the immediate vicinity of said lots 11 and 12,
and her whereabouts and her ownership of said lots could
have been ascertained at any time before the publication of
said notice if any diligence at all had been exercised."
This action was brought about one year following the
issuing of the deeds by the city treasurer.
No question is made as to the validity of the assessments,
or the validity of the certificates of delinquency. The deeds
were issued, as claimed by counsel for respondents, in
accordance with procedure regularly had and notice given as
prescribed by Rem. & Bal. Code, SS 7808, which, so far as
we need here notice its provisions, reads:
"Every piece of property sold for an assessment shall be
subject to redemption by the former owner, or his grantee,
mortgagee, heir or other representative at any time within
two years from the date of the sale . . . Should no redemption
be made within said period of two years, the treasurer
shall, on demand of the purchaser or his assigns, and
the surrender to him of the certificate of purchase, execute
to such purchaser or his assigns, a deed for the piece of
property therein described: Provided, that no such deed
shall be executed until the holder of such certificate of
purchase shall have notified the owner of such piece of property
that he holds such certificate, and that he will demand a deed
therefor; and if, notwithstanding such notice, no redemption
is made within sixty days from the date of the service or
first publication of such notice, said holder shall be entitled
to said deed. Said notice shall be given by personal service
upon said persons: Provided, that in case said parties are
nonresidents of the state or they cannot be found therein after
diligent search, then such notice may be given by publication
in a weekly newspaper published in said city once each week
SMITH v. CRAVER. 247
Jan. 1916 Opinion Per PARKER, J.
for three successive weeks or if no newspaper be published
in said city, then publication shall be made as provided in
SS 7792. Such notice and return thereto, with the affidavit
of the person claiming such deed showing that such service
was made, shall be filed with the treasurer. Such deed shall
be executed only for the piece of property described in the
certificate, and after payment of all subsequent taxes and
special assessments thereon."
The principal contention of counsel for appellants is that
Effie E. Smith was the owner of the lots at all times here
involved, within the meaning of the provisions of SS 7808
above quoted, requiring notice to be given to "the owner"
by the holder of the certificate of delinquency of his application
to the city treasurer for a deed, so as to furnish such
owner an opportunity to redeem before the issuance of such
deed. We are constrained to agree with this contention,
assuming, of course, that the allegations of the complaint are
true. Counsel for respondents proceed upon the theory that
the notice need only be given to the record owner, that is, the
record owner as shown by the instruments of conveyance of
record in the county auditor's office; and that, since there
was of record in that office a conveyance absolute in form
for the lots from appellant Effie E. Smith to George E.
Gowen, respondent L. H. Craver had the right to rely
absolutely upon such conveyance as showing George E. Gowen
to be the owner of the lots.
Now this law is silent as to who shall be deemed the owner
for the purpose of giving notice of application for deeds,
within the meaning of SS 7808 above quoted. This law is, in
this respect, unlike those tax laws which provide that, for
the purpose of service of notice or process, those persons
shall be deemed owners whose names appear upon the tax
rolls or some other specified public record. This law uses
the word "owner," in this connection, unqualifiedly; and we
think it means the real owner, unless the real owner has done
something which works an estoppel against him asserting
that he is the real owner and, as such, entitled to notice
248 SMITH v. GRAVER.
Opinion Per PARKER, J. 89 Wash.
furnishing him an opportunity to redeem. It might be that, if
the same name appeared as owner upon the assessment rolls,
in the certificate of delinquency and in the record of conveyance
in the auditor's office, and, in addition thereto, the lot
was not in possession of anyone, such evidence of ownership
would entitle the holder of the certificate of delinquency to
a deed upon giving notice to such owner, regardless of who
the true owner might be. But we have no such case here.
We have seen that these lots have been in the possession of
appellant Effie E. Smith for more than ten years past; that
she was the record owner when these assessments were levied;
that her name appears as owner upon the assessment rolls;
that her name appears as owner in the certificates of
delinquency; and that she now lives, and for a long time prior to
the publication of the notices had lived, in the "immediate
vicinity" of the lots. We think these are facts to which
respondent L. H. Graver could not shut his eyes.
We are not dealing with the foreclosure of a general tax
lien, a lien which the law itself furnishes to all owners, in a
measure, an annual notice of its existence. But we are
dealing with a local assessment lien, the creation of which the
owner of the property charged may never have any actual
notice, and which is sought to be foreclosed in this summary
manner instead of by judicial process. More, this is an
eminent domain local improvement assessment, for which
property at some considerable distance from, and not abutting
upon, the improvement may be assessed, so that the mere
making of the improvement may not suggest to the owner
that his property is to be assessed therefor, as it generally
does where his property abuts directly upon an ordinary
local improvement which he sees being constructed. Hence,
the necessity which the law has always recognized in such
cases of requiring the strictest compliance with the prescribed
statutory prerequisites for the issuance of a deed divesting
the owner of title in satisfaction of such an assessment.
These observations suggest the exercise of great caution, and
SMITH v. CRAVER. 249
Jan. 1916 Opinion Per PARKER, J.
require strict adherence to the notice and procedure
prescribed in SS 7808 above quoted, before it can be held that
the owner is divested of his title in satisfaction of such a
local assessment by the issuance of a deed by the city
treasurer; especially where the required notice furnishing the
owner an opportunity to redeem is not personal but
constructive only, as the notice here relied upon was.
In Albring v. Petronio, 44 Wash. 132, 87 Pac. 49, Justice
Crow, speaking for the court, said:
"Our view is that this statute must be strictly construed
as against the respondent; that he must be held to a
complete and exact compliance with all of its provisions as a
condition precedent to obtaining his deeds. Had he
succeeded in giving personal notice to the appellants, a less
stringent rule might be invoked in his behalf."
This observation, it is true, was made in connection with
defects of procedure preliminary to the issuance of a deed
by the city treasurer not exactly of the same nature as that
here involved, but the principle involved is the same, and the
statute there involved was, in substance, the same as the
above quoted provisions from Rem. & Bal. Code, SS 7808 (P.
C. 171 SS 111). Loeb v. Asberry, 44 Wash. 427, 87 Pac.
510, and Jones v. Seattle Brick & Tile Co., 56 Wash. 166,
105 Pac. 238, lend support to this view.
We are of the opinion that appellants' complaint states a
cause of action, entitling them to redeem from the sale
evidenced by the certificates of delinquency upon which the deeds
of the city treasurer were issued. It follows that the
sustaining of respondents' demurrer to appellants' complaint
and the dismissal of the case were erroneous.
The judgment is reversed, and the cause remanded for
further proceedings.
MORRIS, C.J., MAIN, HOLCOMB, and BAUSMAN, JJ., concur.