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REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

IDAHO.

Brinton v. Johnson, 208 P. 1028.

KANSAS.

Baxter v. Cherryvale Oil Co., 208 P. 568.

NEVADA.

Smith v. Goodin, 206 P. 1067.

Young v. Holman, 208 P. 871.

OREGON.

Degidio v. State Industrial Accident Commission, 207 P. 176.
Gantenbien v. Bowles, 203 P. 614.

Kerby, Ex parte, 205 P. 279.

Strong v. Smith, 208 P. 715.

See End of Index for Tables of Pacific Cases in State Reports

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THE

PACIFIC REPORTER

VOLUME 209

From a judgment for plaintiff, defendants

MARYLAND REALTY CO. v. CITY OF TA- appeal. Affirmed.
COMA et al. (No. 17233.)

(Supreme Court of Washington. Sept. 11,
1922.)

1. Taxation 708 (1)-Statute requiring payment of assessments before foreclosure of delinquency certificate does not apply to certificates held by the county.

E. F. Adams and M. S. Lindsay, both of Tacoma, for appellants.

George O. Swasey, of Tacoma, for respond

ent.

BRIDGES, J. The chief question involved in this appeal is: Does the purchaser from Rem. Code 1915, § 7892-40, providing that a county of real estate obtained by it unthe holder of any certificate of delinquency for der foreclosure of a general tax certificate general taxes shall, before foreclosing the lien, of delinquency receive a title free and clear pay outstanding local assessments, or may elect of all previous local improvement assessto acquire title subject thereto, does not requirements. The facts are stipulated and are as the county to pay assessments before foreclosing the licn of certificates issued to it under section 9257, as amended by Laws 1917, p. 417. 2. Taxation 743-Foreclosure of delinquen

cy certificate by county, and subsequent sale by county, gives title free from lien.

When the county forecloses a delinquency certificate on account of general taxes, buys in the property, and later sells it, the buyer takes a new title, free and clear of prior liens of any kind or character, under Rem. Code 1915, $$ 9270, 9271.

3. Taxation 733-Announcement, on foreclosure of delinquency certificate, that sale was subject to assessments not binding, when property bid in by county.

follows:

By virtue of section 7892-36, Rem. Code, the city of Tacoma issued to the defendants

Lindsay and Scharpf a certificate of delinquency covering certain real estate, which certificate grew out of a certain local improvement assessment. Subsequently the county treasurer of Pierce county issued to the county certificates of delinquency based upon general county and state taxes, which certificates were thereafter foreclosed by it, and at the sale it bid in the property covered by the certificates previously issued to and held by the defendants. Laws 1917, p. 417. Later, at public auction, the county sold such property to the plaintiff, and made a deed thereto. In the foreclosure pro

An announcement, at a sale on foreclosure of delinquency certificate for general taxes, that bids would be subject to lien of local assess-ceeding the county caused a general summents did not apply, where the property was struck off to the county for want of bidders, and, even if it did, was not binding on the county, because those in charge of the sale had no power or authority to so bind the county.

4. Taxation 708 (4)-Personal service not required in proceeding to foreclose delinquency certificate.

Proceedings to foreclose delinquency certificate for general taxes are in rem, and personal service is unnecessary, in view of Rem. Code 1915, 9257, as amended by Laws 1917, p. 417, expressly providing that publication shall be sufficient service.

Department 1.

mons or notice to be published as required by the statute, and the sufficiency of such notice is not here questioned. It also caused a copy of the complaint to be served on the foreclosure proceedings, nothing was said treasurer of the city of Tacoma. In such concerning the local improvement assessments, or the issuance of the certificates of delinquency thereon to the defendants, nor were the defendants Lindsay and Scharpf in any manner served with any process in that action. However, at the foreclosure sale it was orally announced "that all bids made would be subject to the lien of all assessments for local improvements." After

Appeal from Superior Court, Pierce Coun- the plaintiff obtained its title from the county; Chapman, Judge.

Action by the Maryland Realty Company against the City of Tacoma and others.

ty, it brought this suit to quiet its title
against the local improvement assessment
lien, and against any rights of the defend-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
209 P.-1

2

209 PACIFIC REPORTER

A,

ants growing out of such assessments: judgment was entered for the plaintiff as prayed for, and the defendants have appealed.

Appellants contend that the Legislature, by its various enactments; intended to make the lien for local assessments and that for general taxes, equal, and that the foreclosure of the lien of the latter cannot, at least under the circuinstances shown here, destroy The and cut off the lien of the former. whole case depends upon the construction of our statutes. Section 9230, Rem. Code, provides that the lien of general taxes

* *

shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility to or with which said real estate may become charged or liable."

Section 9257, Rem. Code, as amended by Laws 1917, p. 417, is with reference to general taxes, and is in part as follows:

* * *

"After the expiration of five years from the date of delinquency, when any property remains on the tax rolls for which no certificate of delinquency has been issued, the county treasurer shall proceed to issue certificates of delinquency on said property to the county, and shall file said certificates when completed with the clerk of the court, and the treasurer shall thereupon proceed to foreclose in the name of the county, the tax liens embraced in such certificates, and the same proceedings shall be had as when 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. Said certificates of delinquency issued to the county may be issued in one general certificate in book form including all property, and the proceedings to foreclose the liens against said property may be brought in one action and all persons interested in any of the property involved in said proceedings may be made codefendants in said action, and if unknown may be therein named as unknown owners, 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 proceedings and of any and all steps thereunder.

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Section 7892-40, Rem. Code, found in the chapter with reference to local improvements, reads as follows:

"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 In any sale and deed shall so state.

action to foreclose any lien for general taxes upon any property a copy of the complaint shall be served 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 of the lien or liens for general taxes for which the same was 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."

[1] Appellants contend that this last-quoted section applies to foreclosures and purchases made by counties, as well as those made by private individuals, and that consequently it was necessary that the county, before foreclosing, should pay the local assessments or bid in the property subject Before the thereto. We cannot so hold. passage of this section (7892-40) by the 1911 Legislature, we had consistently held that the payment of local assessments was not a prerequisite to foreclosure of certificates of delinquency for general taxes, whether such suit be by a county or by private individuals. McMillan v. Tacoma, 26 Wash, 358, 67 Pac. 68; Ballard v. Way, 34 Wash. 116, 74 Pac. 1067, 101 Am. St. Rep. 993; Penna. Co. v. Tacoma, 36 Wash. 656, 79 Pac. 306; Ballard V. Ross, 38 Wash. 209, 80 Pac. 439. It was after the rendition of these decisions that the Legislature passed section 7892-40. It was the legislative intent to preserve the lien of the local assessment, where it could' be done without sacrifice to the county and state. If private investors would take the property, they must pay both the delinquent general tax and the local assessments; but, if the property be of such small value as that the county must buy it in, then the superiority of the lien for general taxes must be asserted, even to the point of de stroying the lien of the local assessment. Any other construction of the statute would greatly hamper and hinder the state and county in securing funds by means of which they are enabled to carry out their constitutional and statutory functions.

In a general way, the first portion of section 7892-40, Rem. Code, is possibly broad enough to include the county, as well as private individuals; but the latter portion of the section makes it plain that the Legisla ture did not intend to include counties, for otherwise it would have been useless to have made the provision that

"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 the discharge in full of the lien or liens for general taxes for which the

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