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(209 P.)

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."

"The state and its subordinate municipalities cannot exist without the collection of public revenue, and serious confusion would result if the lien of taxes levied for that purpose should be made inferior to, or equal with, local assessments or other liens."

[3] The announcement at the beginning of the sale that "all bids made would be subject to the lien of all assessments for local improvements" cannot alter the situation. We are not called upon to decide what would have been the result if, under this announce

While the exact question we are now discussing has not previously been before this court, yet in the case of Holzman v. Spokane, 91 Wash. 418, 157 Pac. 1086, we seem to have assumed that such section applied only to private individuals, for we there said: "The local improvement law of 1911 containment, the property had been sold to private ing the above quoted provisions in section 40 thereof [section 7892-40, Rem. Code] looking to the enforcement of local assessment liens and in effect making them of equal, rank with general tax liens when the latter has been transferred by the county to private individuals. *

"

And in the case of Lawrence v. Tacoma, 103 Wash. 86, 173 Pac. 1017, speaking generally of this same section, we seemed to have assumed that it applied only to private individuals, for we said:

"It is plain from the wording of the statute that before a foreclosure of a certificate of delinquent taxes may be had by a private owner thereof, it is necessary to pay local improvement assessments, and vice versa."

[2] Where the county forecloses a certificate of delinquency on account of general taxes, and buys in at the sale, and later sells the property to a private individual, it initiates and creates a new title to the property, which the private individual takes free and clear of any kind or character of prior liens. Section 9270, Rem. Code, reads:

"All property deeded to the county under the provisions of this act shall be stricken from the tax rolls as county property and exempt from taxation and shall not be again assessed or taxed while the property of the county."

Section 9271, Rem. Code, reads that:

persons. There were no bids, and because there were none the property was considered as sold to the county. The announcement did not cover such a situation. Even if it had, the county would not have been bound by it, because those in charge of the sale did not have any power or authority to make such an announcement, in so far as it might affect property bought in by the county. their

[4] The appellants contend that rights have not been cut off, because they were not made parties to, or served with process in, the county foreclosure suit. We have always held that such proceedings were in rem, and that personal service was not necessary. Section 9257, Rem. Code, as amended by Laws 1917, p. 417, expressly provides for publication of service, and that such

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GRAMM-BERNSTEIN MOTOR TRUCK CO.
v. TODD et al. (No. 17241.)
(Supreme Court of Washington. Aug. 28,
1922.)

"No claims shall ever be allowed against the county from any municipality, school district, road district or other taxing district for taxes levied on property acquired by the county by tax deed under the provisions of this act, but all taxes shall at the time of deeding said prop-I. Sales erty be thereby canceled. *

Section 7892-20, Rem. Code, being a part of the local improvement act, provides that the lien of the local assessment shall be prior to all other liens, "except a lien for assessments for general taxes." Because the state and its subdivisions and municipalities depend for their existence entirely upon the power of taxation and the collection of revenues thereby, this court will not make any ruling which would hinder and delay the collection of such taxes, unless clearly so provided by the Legislature. We said in McMillan v. Tacoma, supra:

234 (9)-Seiler by course of dealing held estopped to claim title under conditional sales contract.

Where, although under a motor truck company's arrangement with a selling agent he was generally required, before getting possession of trucks sold him by it, to give a chattel mortgage or a conditional sales contract to secure the price, the company, for a number of years, had permitted him to sell such trucks as his own, and thereby obtain the money to pay the company's mortgage or contract, the company was estopped, as against a purchaser from the agent of a truck conditionally sold the agent by the company, to claim title to the truck, where the purchaser had no actual knowledge

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

of the company's title, although its conditional conditional sales contract. It appears that sale contract with the agent was duly recorded. 2. Sales 479(9)-Money judgment for any part of purchase price will not be granted in

replevin.

In actions to replevy goods for failure of the buyer to pay the purchase price, a money judgment for any part of the purchase price will not be granted.

Department 1.

Rea did not pay the appellant the balance of the purchase price for the truck in question, and because thereof it replevied the machine, which it found in the possession of Holroyd.

[1] The sole question is whether Rea had power and authority to agree to sell this truck to the respondent, Holroyd, and convey a good title to him. It may be conceded for the purposes of this case that under the cir

Appeal from Superior Court, Pierce Coun- cumstances above related the appellant might ty; Wm. D. Askren, Judge.

But to

the owner of the trucks and afterwards remitting the proceeds to it. The appellant wrote to Rea a number of letters which bear out this idea. In one letter to Rea, as early as February, 1917, it said:

"Mr. Bernstein also requests me to tell you, at any time you may sell one of the trucks, to promptly forward us a check, so that we can have the interest on the notes stopped instantly."

agree to sell its truck to Rea, and under its conditional sales contract hold the title, even Action by the Gramm-Bernstein Motor Truck Company against Wilbur R. Todd and and such person not having any actual as against a person to whom Rea might sell, others, doing business as the Automobile Finance Company, and another. Judgment for accomplish this the appellant must have knowledge of the conditional sale. defendants, and plaintiff appeals. Affirmed. dealt with Rea in a manner not inconsistent Guy E. Kelly, of Tacoma, and Thomas with the conditional sales contract. In this MacMahon, of Seattle, for appellant. particular case we do not find that this was H. G. & Dix H. Rowland, of Tacoma, for done. As a matter of fact, over a period of respondents. years it seems to have been Rea's custom to sell these machines and thereby obtain monBRIDGES, J. The appellant is the manu-ey to discharge the chattel mortgage, or to facturer at Lima, Ohio, of a certain truck secure a release of the conditional sales conbearing its name. Some years ago it made tract theretofore made to appellant. The an arrangement with one N. F. Rea of Taco- record shows quite conclusively that not onma, whereby he should be authorized to pur-ly did appellant know of this custom of Rea, chase and exclusively sell its trucks in a cer- but actually knew he was making sales as tain territory in Washington, including Pierce county. Generally speaking, the trucks would be shipped to Rea, who, before being able to obtain the bill of lading, would be required either to give to the appellant a chattel mortgage securing notes representing the purchase price or a conditional sales contract. Rea had his place of business in the city of Tacoma, and usually kept one or more of these trucks on display and for sale. During the past three or four years he had sold a number of appellant's trucks. In the latter part of 1920 appellant shipped to Rea the truck here involved. It was surrendered into his possession upon the execution of a conditional sale contract. This contract fixed the price to be paid, the times of payment, and provided that title should remain in the appellant at all times until the full purchase price was paid, and contained other covenants usual in such instruments. This contract was filed with the auditor of Pierce, county within the statutory time. Some time in March, 1921, Rea sold this last-named truck to the respondent, A. Holroyd, for $5,682.50. At the time of the sale the truck was in Rea's display room. Holroyd paid down a part of the purchase price, and gave to Rea his notes covering the balance, and Rea gave to him the usual conditional sales contract, The truck was then delivered into the possession of Holroyd. Almost at once after the sale Rea assigned to the respondent, the Automobile Finance Company, of Tacoma, the notes received from Holroyd and also the

In another letter we find:

"We trust, therefore, that you will make an effort to sell this 22-ton to some prospect in your territory, so that you can take [care] of the note."

In another letter it is stated:

the note would be past due; but, if you have not as yet sold the truck, you evidently cannot pay for it.

"We expected you to send a remittance before

There was other evidence of similar purport. This conduct is entirely inconsistent with the idea of the appellant's retaining title by virtue of the conditional sales con- . tract. It is estopped by its conduct to claim that it is the owner of the truck, and that Rea had no authority to sell it and convey a good title. If one intends to claim title under a conditional sales contract, his conduct must not be inconsistent with the terms of that instrument. Hardin v. State Bank of Seattle, (Wash.) 205 Pac. 382.

[2] The appellant contends that Holroyd For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.)

paid to the Finance Company some $2,000 of the purchase price for the truck after the commencement of this suit, and after he had full knowledge of appellant's claim, and that in any event it is entitled to judgment for that sum. This was a replevin suit, and in no event would a money judgment of the character requested have been proper; but we consider that Holroyd had a perfect right to pay this money to the Finance Company, even after he knew of appellant's claim. The amount paid by him was to discharge his own notes, which were then outstanding, and the mere fact that he might at the time of payment have been acquainted with appellant's rights would not have justified him in refusing to pay the persons to whom the

Action by C. H. Kalmans and another against Mary J. Powles and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions to dismiss.

James Kiefer, of Seattle, for appellants.
H. E. Foster, of Seattle, for respondents.

action to recover $500 paid by them as earnTOLMAN, J. Respondents instituted this est money upon the purchase of certain real estate. They alleged, and introduced testimony tending to prove, that three distinct misrepresentations were made to induce them to pay the money, and accept an earnest-money receipt in the nature of a prelimiary contract for the purchase of the property: First, that the property to be purchased was free and clear of all liens and incumbrances, when in fact it was subject to PARKER, C. J., and FULLERTON, MIT- the rate of 6 per cent. per annum before a mortgage for $7,500, bearing interest at CHELL, and TOLMAN, JJ., concur.

notes had been assigned.

The judgment is affirmed.

KALMANS et al. v. POWLES et al,
(No. 17199.)

(Supreme Court of Washington. Sept. 6, 1922.)

I. Vendor and purchaser 37(1) - Contract not avoided by misrepresentation as to annual

taxes.

Where one of the purchasers was a business man, and there was no fiduciary relationship, representations made by vendors that the taxes on the land were only $290 a year, while they were in fact $540, did not entitle purchasers to recover back the earnest money; the matter not being peculiarly within vendors' knowledge, but one of public record.

2. Evidence 23(1)-Common knowledge that realty tax is matter of public record and subject to change without notice to owner.

It is common knowledge that the amount of tax on real property varies from year to year, and is determined by public officials, without notice to owner, and that owner, as well as any other person, must obtain his knowledge from the public record.

3. Vendor and purchaser

maturity, and 12 per cent. after maturity, which, according to the record, was overdue; second, that the general taxes on the property were $290 per year, while in truth, as appears from the public record, the taxes exceeded $540 per annum; and, third, that if respondents purchased the property they would be given the first right to buy the household furniture and furnishings then in the residence located thereon, but that upon payment of the earnest money the household goods were immediately removed, and respondents were denied any right or opportunity to purchase. The trial court expressly refused to make any findings on the first and last mentioned issues, but found for respondents in the matter of the taxes, and entered judgment against appellants for the full sum demanded, from which judgment this appeal is prosecuted.

The evidence was in direct conflict upon all material points, and as we cannot say that it preponderated against the finding of the trial court, to the effect that misrepresentations as to taxes were made, we accept that finding as true; but does that support the judgment? In the case of Washington Central Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366, this court said:

"Conceding that these representations were 43(1)—Knowledge upon them, there is not yet enough shown, it false, and conceding that the purchaser relied of mortgage before payment of earnest money prevented its recovery, though property rep-ant relief. There is no fiduciary relation beseems to us, in this answer to give the defendresented free of incumbrance.

Where, although vendors represented that realty sold was free from incumbrances, the purchasers were informed of a mortgage thereon before the payment of the earnest money, purchasers could not recover the earnest money, notwithstanding the law abhors a forfeiture.

. Department 1.

tween the seller and the buyer alleged. It is not alleged that the buyer was in such a position that he was unable to make an investigation concerning the truth or falsity of these alleged representations."

And the same rule was enunciated in West Seattle Land & Improvement Co. v. Herren, 16 Wash. 665, 48 Pac. 341. In Fischer v.

Appeal from Superior Court, King Coun- Hillman, 68 Wash. 222, 122 Pac 1016, 39 L. ty; Talman, Judge.

R. A. (N. S.) 1140, the late Mr. Justice Dun

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

bar, who wrote all three of the opinions here referred to, speaking for the court, said:

the truth or falsity of the statements made as to taxes.

[3] The trial court having made no findings as to the other alleged misrepresenta

which to determine the facts. A careful reading of that record convinces us that respondents have not sustained the burden of proof as to either. The preponderance of the evidence is to the effect that respondents were informed of the existence of the

and that they were afforded an opportunity to purchase all of the personal property that they had been told they might buy. Under these conditions, much as the law abhors a forfeiture, the judgment must be reversed. Reversed, with directions to dismiss.

"It is earnestly contended by appellants that the demurrers to these complaints should have been sustained, that the plaintiff was in a positions, we have only the cold record from tion to ascertain the truthfulness of the statements and representations made by the defendants, that there was no fiduciary relation existing, and that it was the plaintiff's duty to ascertain the truth or falsity of said statements; and many cases are cited to sustain this rule. It may be admitted that some of the ear-mortgage before the earnest money was paid, lier cases decided by this court, notably the case of Washington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366, laid down a rule that gives color at least to appellants' contention, and that the language used was broad enough to sustain such contention. But that rule has been mitigated by the later decisions of this court, and, as we view it now, was probably not fully justified by the authorities extant at the time it was announced. It has been supplanted by the more reasonable and humane rule that a party will not be allowed to shield himself because the party with whom he was dealing was careless or too confiding, and that, while the state cannot stand in loco parentis to all its citizens, the crafty and designing will not be allowed, by cunning artifices tending to deceive the simple-minded, to rob them of what justly belongs to them."

PARKER, C. J., and FULLERTON and MITCHELL, JJ., concur.

BUTTNICK v. BUTTNICK et al. (No. 17107.)
(Supreme Court of Washington.
1922.)

Sept. 8,

arate maintenance held conclusive on the issue of marriage.

A judgment in an action for separate maintenance, reciting that plaintiff and defendant "now are, and ever since on or about" a specified date "have been, husband and wife," is a conclusive adjudication of the existence of the marriage relation in a subsequent suit for separate maintenance.

In neither of the first two cases mentioned 1. Judgment 742-Judgment in suit for sepwere the representations as to facts of rec.ord. In the last case there were representations as to record facts, combined with allegations as to misrepresentations of other facts not of record, and of course the demurrer was properly overruled. Even the misrepresentations as to record facts, as there shown, were of a character peculiarly within the knowledge of the seller, and the truth or falsity thereof was not readily ascertainable, even by reference to the record by one not skilled in such matters.

[1, 2] Here we have, according to both allegations and proof, at most, a general statement that the taxes were an amount certain, without confining the stated fact to any particular year, or any one year, and it is common knowledge that the amount of the tax on real property varies from year to year, as fixed and determined by public officials, without notice to or knowledge of the owner, and that the owner, as well as any other person interested, must obtain his knowledge from the public record, which is readily accessible to all. Respondent Kalmans was a business man, presumably familiar with the method of levying and collecting taxes, must have known that with slight expenditure of time he could ascertain the true condition as to taxes, and there being no fiduciary relation existing, and no act shown in any way tending to induce him not to do so, we must hold that it was his duty under the circumstances to ascertain

2. Judgment

713 (3) Judgment in action for separate maintenance held not res judicata in subsequent action for same relief, where other parties are joined.

tenance is not res judicata in a subsequent action for the same relief, as to the amount of the judgment, and does not preclude the bringing of the subsequent suit, in which other persons were joined as defendants, on the ground that they were aiding the principal defendant in secreting his property; the parties in the original action having, immediately after the judgment therein, resumed the marriage relation and continued to live together for a period of 13 years, disregarding the judgment, and the bringing of a second suit having in no way prejudiced the defendants.

A judgment in an action for separate main

3. Husband and wife 299 (2)-Judgment for separate maintenance held to have properly imposed a lien on certain property.

Where the evidence was sufficient to war

rant a finding that corporate stock assigned by defendant husband to his sister was made without consideration, and without the knowledge of the sister, and for the purpose of avoiding the payment of alimony, a judgment for separate maintenance in favor of plaintiff, the wife,

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

(209 P.)

properly imposed a lien on such stock in the [ for costs. The findings and judgment were hands of the sister, made a defendant in the made and duly entered of record on April 3, action. 1905. It was a judgment wherein the court had jurisdiction of the subject-matter, by law, and jurisdiction of the parties because

Department 1.

Appeal from Superior Court, King County; of their personal appearance in the action Hall, Judge.

Action by Celia Buttnick against Morris Buttnick and others. From a judgment for plaintiff, certain defendants appeal. firmed.

The judgment, of course, by undeniable implication was an adjudication of the existence between the parties of the relation of Af-husband and wife-a relation necessarily essential in a judgment for separate mainteWash. 454, 142 Pac. 1138, we said: nance. In the case of Loeper v. Loeper, 81

Peters & Powell and Arthur C. Bannon, all of Seattle, for appellants.

Greene & Henry and Jas. E. McGrew, all of Seattle, for respondent.

"The whole theory of the doctrine of res judicata is that a question once decided by a court of competent jurisdiction having jurisdiction of the parties is finally decided, until reversed upon appeal or otherwise set aside in some lawful way. Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701; Perlus v. Silver, 71 Wash. 338, 128 Pac. 661; Stay v. Stay, 53 Wash. 534, 102 Pac.

Harding v. Harding, 198 U. S. 317; Kalisch v. 94, 96 N. E. 49, 36 L. R. A. (N. S.) 329.” Kalisch, 9 Wis. 482; Hoag v. Hoag, 210 Mass.

The record upon which respondent's plea of res judicata rests is admitted by the appellant, and we think it binding upon him in this case.

MITCHELL, J. This is an action for separate maintenance, brought by Celia Buttnick against her husband, Morris Buttnick. The other parties were brought in as defendants upon allegations of an alleged conspir-420; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; acy between them and the husband to secrete his property and place it beyond reach for the support of herself and children. To the amended complaint, upon which the case was tried, the husband interposed an affirmative defense and cross-complaint, alleging that the marriage was void, and seeking an annulment of it, and, in the alternative, a cross-complaint for a decree of divorce in his favor. Plaintiff's reply set out a former adjudication that the marriage between the parties was valid, and denied the allegations of fact in the cross-complaint for a divorce. Other than the husband and Lena Buttnick, all of the defendants were dismissed out of the case. Judgment for separate maintenance was entered in favor of the plaintiff, who was also awarded a lien against 50 shares of stock of the Buttnick Jobbing & Investment Company, held by Lena Buttnick, which she was enjoined from disposing of or incumbering. The defendants have appealed.

[1] Hereinafter Morris Buttnick will be spoken of as the appellant. He and the respondent were married on May 16, 1900, at Victoria, B. C. The principal claim of the appellant, on the appeal, is that the court erred in finding that he and the respondent are, and since May 16, 1900, have been, husband and wife, and in refusing to find that the marriage was illegal and void, and in refusing to enter a decree annulling the marriage. It appears that prior to 1905 the appellant neglected his wife and their three children, whereupon she brought an action against him in the superior court of King county for separate maintenance. He appeared in that action, the trial of which, on March 27, 1905, resulted in a finding, among others, "that plaintiff and defendant now are and ever since on or about the 16th day of May, 1900, have been husband and wife," and a judgment awarding her certain specific amounts for separate maintenance, and

[2] A few days after the judgment in the former suit was entered appellant resumed his former course of living with his wife and children and continued to do so thereafter for over 13 years or until about 2 years before the commencement of this action. He now contends that, if the judgment in the former hearing was res judicata as to the marriage relation, it was so as to the amount awarded for maintenance, and hence the judgment herein in that respect, which is in excess of the amount formerly allowed, is unwarranted, and that respondent's only remedy was in the original action for a modification of that judgment rather than a new action. The record, however, abundantly shows that, after he commenced to live again with his family, their course of conduct with reference to money matters was as they agreed to, rather than as provided in the judgment, and further in the present instance it was deemed advisable to bring in new parties. No objection because of a new suit was made by way of answer to the amended complaint. The neglect that gave rise to the original suit and the requirement that he pay so much for her separate maintenance were overcome by the voluntary act of the parties in living together thereafter, which in turn, because of his repeated and more recent neglect, gave way to a new cause of complaint in this respect. His being called upon to litigate it in a new action, where other de fendants were considered necessary parties, rather than in the former suit, was in no way prejudicial to his rights.

Further, it is contended that, assuming a valid marriage between the parties, the

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