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(209 P.) same was sold, and the remainder, or such por-1 “The state and its subordinate municipalities tion thereof as may be necessary, shall be paid cannot exist without the collection of public to the city to discharge all local assessment revenue, and serious confusion would result liens upon such property, and the surplus, if if the lien of taxes levied for that purpose any, shall be distributed among the proper should be made inferior to, or equal with, local county funds."

assessments or other liens." While the exact question we are now dis- ' [3] The announcement at the beginning cussing has not previously been before this of the sale that "all bids made would be subcourt, yet in the case of Holzman v. Spokane, ject to the lien of all assessinents for local 91 Wash, 418, 157 Pac. 1086, we seem to have improvements" cannot alter the situation. assumed that such section applied only to We are not called upon to decide what would private individuals, for we there said: have been the result if, under this announce

"The local improvement law of 1911 contain- ment, the property had been sold to private ing the above quoted provisions in section 40 persons. There were no bids, and because thereof (section 7892-40, Rem. Code] looking there were none the property was considered to the enforcement of local assessment liens as sold to the county. The announcement and in effect making them of equal, rank with did not cover such a situation. Even if it general tax liens when the latter has been had. the county would not have been bound transferred by the county to private individu

by it, because those in charge of the sale did als. * * *"

not have any power or authority to make And in the case of Lawrence v. Tacoma, such an announcement, in so far as it might 103 Wash. 86, 173 Pac. 1017, speaking gener- affect property bought in by the county. ally of this same section, we seemed to have [4] The appellants contend that their assumed that it applied only to private in rights have not been cut off, because they dividuals, for we said:

were not made parties to, or served with "It is plain from the wording of the statute

process in, the county foreclosure suit. We that before a foreclosure of a certificate of de

have always held that such proceedings were linquent taxes may be had by a private owner in rem, and that personal service was not thereof, it is necessary to pay local improve necessary. Section 9257, Rem. Code, as ment assessments, and vice versa."

amended by Laws 1917, p. 417, expressly pro

vides for publication of service, and that [2] Where the county forecloses a certif

suchcate of delinquency on account of general taxes, and buys in at the sale, and later sells

"shall be sufficient service thereof on all per

sons interested in the property therein describthe property to a private individual, it in

ed, * * * and that all persons * * * are itiates and creates a new title to the prop

required to take notice of such proceedings erty, which the private individual takes free

and of any and all steps thereunder." and clear of any kind or character of prior liens. Section 9270, Rem. Code, reads:

The judgment is affirmed. "All property deeded to the county under the provisions of this act shall be stricken from the

| PARKER, C. J., and TOLMAN, FULLERtax rolls as county property and exempt from TON, and MITOHELL, JJ., concur. taxation and shall not be again assessed or taxed while the property of the county."

Section 9271, Rem. Code, reads that: "No claims shall ever be allowed against the GRAMM-BERNSTEIN MOTOR TRUCK CO. county from any municipality, school district,

v. TODD et al. (No. 17241.) road district or other taxing district for taxes levied on property acquired by the county by (Supreme Court of Washington. Aug. 28, tax deed under the provisions of this act, but

1922.) all taxes shall at the time of deeding said prop

1. Sales 234(9)-Seller by course of dealing erty be thereby canceled. • • *"

held estopped to claim title under conditional Section 7892–20, Rem. Code, being a part sales contract. of the local improvement act, provides that Where, although under a motor truck comthe lien of the local assessment shall be pany's arrangement with a selling agent he was • prior to all other liens,"except a lien for generally required, before getting possession of assessments for general taxes." Because the trucks sold him by it, to give a chattel mortstate and its subdivisions and municipalities gage or a conditional sales contract to secure depend for their existence entirely upon the

the price, the company, for a number of years,

had permitted him to sell such trucks as his power of taxation and the collection of reve

own, and thereby obtain the money to pay the nues thereby, this court will not make any

company's mortgage or contract, the company ruling which would hinder and delay the

was estopped, as against a purchaser from the collection of such taxes, unless clearly so

agent of a truck conditionally sold the agent provided by the Legislature. We said in Me by the company, to claim title to the truck, Millan v. Tacoma, supra:

where the purchaser had no actual knowledge For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Toa

of the company's title, although its conditional conditional sales contract. It appears that sale contract with the agent was duly recorded. Rea did not pay the appellant the balance 2. Sales Ow479(9) Money judgment for any

of the purchase price for the truck in quespart of purchase price will not be granted in

tion, and because thereof it replevied the replevin.

machine, which it found in the possession of In actions to replevy goods for failure of

Holroyd. the buyer to pay the purchase price, a money

[1] The sole question is whether Rea had judgment for any part of the purchase price

power and authority to agree to sell this will not be granted.

truck to the respondent, Holroyd, and convey

a good title to him. It may be conceded for Department 1.

the purposes of this case that under the cirAppeal from Superior Court, Pierce Coun cumstances above related the appellant might ty; Wm. D. Askren, Judge.

agree to sell its truck to Rea, and under its

conditional sales contract hold the title, even Action by the Gramm-Bernstein Motor

as against a person to whom Rea might sell, Truck Company against Wilbur R. Todd and

and such person not having any actual others, doing business as the Automobile Fi

knowledge of the conditional sale. But to nance Company, and another. Judgment for

accomplish this the appellant must have 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

rer 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 the owner of the trucks and afterwards rePierce county. Generally speaking, the trucks | mitting the proceeds to it. The appellant would be shipped to Rea, who, before being wrote to Rea a number of letters which bear able to obtain the bill of lading, would be re out this idea. In one letter to Rea, as early quired either to give to the appellant a chat- as February, 1917, it said: tel mortgage securing notes representing the “Mr. Bernstein also requests me to tell you, purchase price or a conditional sales contract. at any time you may sell one of the trucks, Rea had his place of business in the city of to promptly forward us a check, so that we Tacoma, and usually kept one or more of can have the interest on the notes stopped inthese trucks on display and for sale. During stantly." the past three or four years he had sold a number of appellant's trucks. In the latter

In another letter we find: part of 1920 appellant shipped to Rea the

“We trust, therefore, that you will make an truck here involved. It was surrendered in

effort to sell this 242-ton to some prospect in to his possession upon the execution of a your territory, so that you can take (care] of conditional sale contract. This contract

the note.” fixed the price to be paid, the times of pay

In another letter it is stated: ment, and provided that title should remain in the appellant at all times until the full

“We expected you to send a remittance before

the note would be past due; but, if you have purchase price was paid, and contained other

not as yet sold the truck, you evidently cannot covenants usual in such instruments. This

pay for it. . . " contract was filed with the auditor of Pierce county within the statutory time. Some time There was other evidence of similar purin March, 1921, Rea sold this last-named port. This conduct is entirely inconsistent truck to the respondent, A. Holroyd, for $5,- with the idea of the appellant's retaining ti682.50. At the time of the sale the truck was tle by virtue of the conditional sales con-, in Rea's display room. Holroyd paid down tract. It is estopped by its conduct to claim a part of the purchase price, and gave to Rea that it is the owner of the truck, and that his notes covering the balance, and Rea gave Rea had no authority to sell it and convey a to him the usual conditional sales contract, good title. If one intends to claim title unThe truck was then delivered into the pos- der a conditional sales contract, his conduct session of Holroyd. Almost at once after must not be inconsistent with the terms of the sale Rea assigned to the respondent, the that instrument. Hardin v. State Bank of Automobile Finance Company, of Tacoma, Seattle, (Wash.) 205 Pac. 382. the notes received from Holroyd and also the [2] The appellant contends that Holroyd

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

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(209 P.) paid to the Finance Company some $2,000 of Action by C. H. Kalmans and another the purchase price for the truck after the against Mary J, Powles and others. Judgcommencement of this suit, and after he had ment for plaintiff's, and defendants appeal. full knowledge of appellant's claim, and that Reversed, with directions to dismiss. in any event it is entitled to judgment for

James Kiefer, of Seattle, for appellants. that sum. This was a replevin suit, and in

H. E. Foster, of Seattle, for respondents. no event would a money judgment of the character requested have been proper; but

TOLMAN, J. Respondents instituted this we consider that Holroyd had a perfect right

action to recover $500 paid by them as earnto pay this money to the Finance Company,

est money upon the purchase of certain real even after he knew of appellant's claim. The amount paid by him was to discharge his

estate. They alleged, and introduced testi.

mony tending to prove, that three distinct own notes, which were then outstanding, and

misrepresentations were made to induce the mere fact that he might at the time of

them to pay the money, and accept an earnpayment have been acquainted with appel

est-money receipt in the nature of a prelimi. lant's rights would not have justified him

nary contract for the purchase of the propin refusing to pay the persons to whom the

erty: First, that the property to be purnotes had been assigned.

chased was free and clear of all liens and inThe judgment is affirmed.

cumbrances, when in fact it was subject to PARKER, C. J., and FULLERTON, MIT

a mortgage for $7,500, bearing interest at

the rate of 64 per cent. per annum before CHELL, and TOLMAN, JJ., concur.

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 KALMANS et al. v. POWLES et al. exceeded $540 per annum; and, third, that (No. 17199.)

if respondents purchased the property they

would be given the first right to buy the (Supreme Court of Washington. Sept. 6, household furniture and furnishings then in 1922.)

the residence located thereon, but that up

on payment of the earnest money the house1. Vendor and purchaser 37(1) - Contract hold goods were immediately removed, and not avoided by misrepresentation as to annual

respondents were denied any right or opportaxes.

tunity to purchase. The trial court expressWhere one of the purchasers was a busi

ly refused to make any findings on the first ness man, and there was no fiduciary relation

and last mentioned issues, but found for ship, representations made by vendors that the

respondents in the matter of the taxes, and taxes on the land were only $290 a year, while they were in fact $540, did not entitle purchas

entered judgment against appellants for the ers to recover back the earnest money; the full sum demanded, from which judgment matter not being peculiarly within vendors' this appeal is prosecuted. knowledge, but one of public record.

The evidence was in direct conflict upon

all material points, and as we cannot say 2. Evidence 23(1)-Common knowledge that

that it preponderated against the finding realty tax is matter of public record and subject to change without notice to owner.

of the trial court, to the effect that misrep

resentations as to taxes were made, we acIt is common knowledge that the amount of tax on real property varies from year to year,

cept that finding as true; but does that supand is determined by public officials, without

port the judgment? In the case of Washnotice to owner, and that owner, as well as

ington Central Imp. Co. v. Newlands, 11 any other person, must obtain his knowledge Wash. 212, 39 Pac. 366, this court said: from the public record.

"Conceding that these representations were 3. Vendor and purchaser 43(1)-Knowledge

false, and conceding that the purchaser relied of mortgage before payment of earnest money

upon them, there is not yet enough shown, it prevented its recovery, though property rep.

seems to us, in this answer to give the defend

ant relief. There is no fiduciary relation beresented free of incumbrance.

tween the seller and the buyer alleged. It is Where, although vendors represented that

not alleged that the buyer was in such a posirealty sold was free from incumbrances, the tiun that he was unable to make an investiga. purchasers were informed of a mortgage there- tion concerning the truth or falsity of these on before the payment of the earnest money, lalle

ney, | alleged representations." purchasers could not recover the earnest money, notwithstanding the law abhors a forfeiture. And the same rule was enunciated in West

Seattle Land & Improvement Co. v. Herren, • Department 1.

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.

IR, A. (N. S.) 1140, the late Mr. Justice DunFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

bar, who wrote all three of the opinions here the truth or falsity of the statements made referred to, speaking for the court, said: as to taxes. "It is earnestly contended by appellants that

[3] The trial court having made no find. the demurrers to these complaints should have

ings as to the other alleged misrepresentabeen sustained, that the plaintiff was in a posi

tions, we have only the cold record from tion to ascertain the truthfulness of the state

which to determine the facts. A careful ments and representations made by the defend- reading of that record convinces us that reants, that there was no fiduciary relation ex- spondents have not sustained the burden of isting, and that it was the plaintiff's duty to proof as to either. The preponderance of ascertain the truth or falsity of said state the evidence is to the effect that respondments; and many cases are cited to sustain this ents were informed of the existence of the 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

and that they were afforded an opportunity case of Washington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366, laid down a

to purchase all of the personal property that rule that gives color at least to appellants' con- they had been told they might buy. Under tention, and that the language used was broad these conditions, much as the law abhors a enough to sustain such contention. But that forfeiture, the judgment must be reversed. rule bas been mitigated by the later decisions Reversed, with directions to dismiss. of this court, and, as we view it now, was probably not fully justified by the authorities ex

PARKER, C. J., and FULLERTON and tant at the time it was announced. It has been

MITCHELL, JJ., concur. 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

BUTTNICK v. BUTTNICK et al. (No. 17107.) not be allowed, by cunning artifices tending to deceive the simple-minded, to rob them of what (Supreme Court of Washington. Sept. 8, justly belongs to them."

1922.)

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In neither of the first two cases mentioned 1. Judgment 742-Judgment in suit for sed

arate maintenance held conclusive on the is. were the representations as to facts of rec

sue of marriage. .ord. In the last case there were represen

A judgment in an action for separate maintations as to record facts, combined with

tenance, reciting that plaintiff and defendant allegations as to misrepresentations of oth

"now are, and ever since on or about" a specer facts not of record, and of course the ified date "have been, husband and wife," is a demurrer was properly overruled. Even the conclusive adjudication of the existence of the misrepresentations as to record facts, as marriage relation in a subsequent suit for septhere shown, were of a character peculiarly

arate maintenance. within the knowledge of the seller, and the 2. Judgment Om713(3) - Judgment in action truth or falsity thereof was not readily as- for separate maintenance held not res judi. certainable. even by reference to the record | cata in subsequent action for same relief.

where other parties are joined. by one not skilled in such matters. [1, 2] Here we have, according to both al- |

1 A judgment in an action for separate main

tenance is not res judicata in a subsequent aclegations and proof, at most, a general state-ti

tion for the same relief, as to the amount of ment that the taxes were an amount certain,

the judgment, and does not preclude the bringut confining the stated fact to any ing of the subsequent suit, in which other perparticular year, or any one year, and it is sons were joined as defendants, on the ground common knowledge that the amount of the that they were aiding the principal defendant in tax on real property varies from year to secreting his property; the parties in the origyear, as fixed and determined by public offi- / inal action having, immediately after the judgcials, without notice to or knowledge of the

ment therein, resumed the marriage relation owner, and that the owner, as well as any

and continued to live together for a period of

13 years, disregarding the judgment, and the other person interested, must obtain bis

bringing of a second suit having in no way prej. knowledge from the public record, which is udiced the defendants. readily accessible to all. Respondent Kal. mans was a business man, presumably fa- 3. Husband and wife On 299(2) Judgment for miliar with the method of levying and cold separate maintenance held to have properly lecting taxes, must have known that with

imposed a lien on certain property.

me slight expenditure of time he could ascertain

Where the evidence was sufficient to warthe true condition as to taxes, and there

rant a finding that corporate stock assigned by being no fiduciary relation existing, and no

defendant husband to his sister was made with

out consideration, and without the knowledge of act

hown in any way tending to induce him the sister, and for the purpose of avoiding the not to do so, we must hold that it was his payment of alimony, a judgment for separate duty under the circumstances to ascertain I 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 Department 1.

law, and jurisdiction of the parties because Appeal from Superior Court, King County;

of their personal appearance in the action Hall, Judge.

The judgment, of course, by undeniable imAction by Celia Buttnick against Morris plication was an adjudication of the existButtnick and others. From a judgment for ence between the parties of the relation of plaintiff, certain defendants appeal. Af husband and wifea relation necessarily esfirmed.

sential in a judgment for separate maintePeters & Powell and Arthur C. Bannon,

nance. In the case of Loeper v. Loeper, 81 all of Seattle, for appellants.

Wash. 454, 142 Pac. 1138, we said: Greene & Henry and Jas. E. McGrew, all

"The whole theory of the doctrine of res judiof Seattle, for respondente

cata is that a question once decided by a court of competent jurisdiction having jurisdiction of

the parties is finally decided, until reversed upon MITCHELL, J. This is an action for sep- appeal or otherwise set aside in some lawful arate maintenance, brought by Celia Butt- way. Averbuch v. Averbuch, 80 Wash. 257, 141 nick against her husband, Morris Buttnick. Pac. 701; Perlus v. Silver, 71 Wash. 338, 128 The other parties were brought in as defend-Pac. 661; Stay v. Stay, 53 Wash. 534, 102 Pac. ants upon allegations of an alleged conspir

420; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; acy between them and the husband to secrete

Harding v. Harding, 198 U. S. 317; Kalisch v.

Kalisch, 9 Wis. 482; Hoag v. Hoag, 210 Mass. his property and place it beyond reach for

| 94, 96 N. E. 49, 36 L. R. A. (N. S.) 329," the support of herself and children. To the amended complaint, upon which the case was! The record upon which respondent's plea tried, the husband interposed an affirmative of res judicata rests is admitted by the apdefense and cross-complaint, alleging that pellant, and we think it binding upon him in the marriage was void, and seeking an an- this case. nulment of it, and, in the alternative, a [2] A few days after the judgment in the cross-complaint for a decree of divorce in his former suit was entered appellant resumed favor. Plaintiff's reply set out a former his former course of living with his wife and adjudication that the marriage between the children and continued to do so thereafter parties was valid, and denied the allegations for over 13 years or until about 2 years beof fact in the cross-complaint for a divorce.fore the commencement of this action. He Other than the husband and Lena Buttnick, now contends that, if the judgment in the all of the defendants were dismissed out of former hearing was res judicata as to the the case. Judgment for separate mainte-marriage relation, it was so as to the amount Dance was entered in favor of the plaintiff, awarded for maintenance, and hence the judg. who was also awarded a lien against 50 ment herein in that respect, which is in exshares of stock of the Buttnick Jobbing & cess of the amount formerly allowed, is unInvestment Company, held by Lena Buttnick, warranted, and that respondent's only remewhich she was enjoined from disposing of dy was in the original action for a modificaor incumbering. The defendants have ap-tion of that judgment rather than a new pealed.

action. The record, however, abundantly [1] Hereinafter Morris Buttnick will be shows that, after he commenced to live again spoken of as the appellant. He and the re- with his family, their course of conduct with spondent were married on May 16, 1900, at reference to money matters was as they Victoria, B. C. The principal claim of the agreed to, rather than as provided in the appellant, on the appeal, is that the court judgment, and further in the present instance erred in finding that he and the respondent it was deemed advisable to bring in new parare, and since May 16, 1900, have been, hus-ties. No objection because of a new suit was band and wife, and in refusing to find that made by way of answer to the amended comthe marriage was illegal and void, and in plaint. The neglect that gave rise to the refusing to enter a decree annulling the original suit and the requirement that he pay marriage. It appears that prior to 1905 the so much for her separate maintenance were appellant neglected his wife and their three overcome by the voluntary act of the parties children, whereupon she brought an action in living together thereafter, which in turn, against him in the superior court of King because of his repeated and more recent neg. county for separate maintenance. He ap- lect, gave way to a new cause of complaint peared in that action, the trial of which, on in this respect. His being called upon to March 27, 1905, resulted in a finding, among litigate it in a new action, where other de others, "that plaintiff and defendant now fendants were considered necessary parties, are and ever since on or about the 16th day rather than in the former suit, was in no of May, 1900, have been husband and wife," | way prejudicial to his rights. and a judgment awarding her certain spe. Further, it is contended that, assuming a cific anaounts for separate maintenance, and valid marriage between the parties, the

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