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ting forth the facts in reference to the pub- , menced by the filing of a complaint with the lished notice and the procedure leading up clerk of the court; but that, unless service to the judgment, and asked for an order has been had prior to the filing of the comsetting aside the judgment, and directing the plaint, one or more defendants must be republication of the notice for the foreclosure served personally, or publication service com of said tax liens. Such an order was made menced within 90 days from the filing of and filed in the cause. Thereafter notice the complaint. In this case there was no was published, and the defendant Eugene personal service, and publication was not France, who is the owner of certain property made within 30 days after the certificates sought to be foreclosed, appeared and con- were filed. If this proceeding is governed tested the right of the county to foreclose entirely by the general statute, appellant's in the above manner. His special appear- contention must prevail. The only service ance raising the question of jurisdiction har- provided for county foreclosures is by pubing been overruled, he answered, setting up lication, and section 8692, supra, refers only the above-stated facts. The cause was then to the manner of making such service; that tried, and judgment was entered foreclosing is to say, the time the publication shall run, all the certificates of delinquency, including the place where the summons shall be pubthose issued against the lands of defendant lished, and other details pertaining to the France, who has appealed.

method of making publication service. As Appellant admits that the certificates were to the time when the actual service may be issued and filed with the clerk of the supe- made, we find that section 8691, Pierce's rior court, as required by law, but urges Code (Laws 1891, p. 383, c. 178, § 1), provides that compliance has not been made with sec- that the individual certificate holder may tion 8705, Pierce's Code (Laws 1901, p. 386, give the notice "any time after the expiraC. 178, § 4), in that the proceeding to fore- tion of three years from the original date of close was not commenced before January 1, delinquency.” There is manifestly no limit1902. The certificates were filed with the ation as to the time when the individual cerclerk before that time, and, if that consti- tificate holder may give his notice after the tuted a commencement of the foreclosure pro- right to give it accrues. The same must be ceeding, it was commenced within the statu

true as to counties, for after the certificates tory time. It will be observed that the sec- have been filed “the same proceedings shall tion cited provides that upon certificates for be had as when held by an individual." We the particular taxes included in this action,

therefore conclude that, under the special viz., those for 1895 and prior years, held by statute, the county was not required to comthe county, foreclosure proceedings must

mence publication within 90 days, as is rehave been commenced prior to January 1, quired in ordinary civil actions. 1902. The foreclosure proceeding is a spe- The further point is made that the sumcial statutory one, and no formal complaint

mons last published was insufficient. It is is required to be filed. Section 8694, Pierce's

entitled: “In the Superior Court of the Code (Laws 1901, p. 385, c. 178, § 3), merely State of Washington for the County of Cheprovides that the county treasurer shall first halis. State of Washington, County of Chefile the certificates with the clerk, and that halis, Plaintiff, v. John Vosper, etc., Defendthe subsequent procedure shall be as in the

ants." Appellant asks the question whether case of an individual certificate holder. In the state of Washington or the county of the latter case, section 8691, Pierce's Code Chehalis is plaintiff under the above caption. (Laws 1901, p. 383, c. 178, $ 1), provides mere

While it is true the caption is somewhat inly for the giving of notice that the holder

formal, yet the body of the summons clearly will apply to the superior court for judg.

describes the county of Chehalis as the plainment. We think the proceeding to foreclose tiff, and it is manifest that no one could the county certificates is initiated by the fil

have been misled by the informality in the ing of the certificates with the clerk, and

caption. that it is thereby commenced. This suit was The judgment is affirmed. therefore commenced before January 1, 1902, as required by law.

MOUNT, C. J., and FULLERTON, CROW. It is further contended that, if the action and DUNBAR, JJ., concur. was commenced by the filing of the certificates, the court has nevertheless lost juris- RUDKIN, J. (dissenting). Section 8705, diction by reason of failure to publish the Pierce's Code (Laws 1891, p. 386, c. 178, § 4), notice within 90 days from the date of such provides "that on all certificates of delinfiling. Our attention is called to section

quency issued for the taxes of 1895 and prior 8692, Pierce's Code (Ballinger's Ann. Codes years, proceedings for foreclosure under the & St. 1751), which provides that the summons provisions of this act may commence on and in this special proceeding shall be served in :fter December 1, 1900, and not sooner; and the same manner as summons in a civil ac- on certificates of delinquency for 1895, and tion is served in the superior court. It is prior years, held by the county (and such are also pointed out that section 326, Pierce's the certificates involved in this case], proCode (Ballinger's Ann. Codes & St. § 4869), ceedings must be commenced on or before the provides that a civil action may be com- first day of January, 1902, by the several

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county treasurers under the provisions of this 2. APPEAL-FINDINGS or TRIAL COURT-Cox
act.” Section 8694, Pierce's Code (Laws 1901, CLUSIVENESS.
p. 385, c. 178, § 3), provides that: “After the

A finding on conflicting evidence, consist

ing of the oral testimony of witnesses appearing expiration of five years from the date of

before the court, and supported by evidence, delinquency, when any property remains on will not be disturbed on appeal. the tax rolls for which no certificate of de

Appeal from Superior Court, Pierce Counlinquency has been issued, the county treas

ty; Thad. Huston, Judge. urer shall proceed to issue certificates of de

Action by Ann Coates against Joseph Teabo linquency on said property to the county, and

and another. From a judgment for plaintiff, shall file said certificates when completed

defendant Joseph Teabo appeals. Affirmed. with the clerk of the court, and the treasurer shall thereupon, with such legal assistance

Henry R. Harriman and S. D. King, for as the county commissioners shall provide in

appellant. Charles Bedford and E. D. Wilcounties having a population of thirty thous- cox, for respondent. and or more, and with the assistance of the county prosecuting attorney in counties hav- HADLEY, J. This action was brought to ing a population of less than thirty thousand, quiet title to certain land, and Samuel R. proceed to foreclose in the name of the coun- McCaw and Joseph Teabo were made defendty, the tax liens embraced in such certifi- ants. Both defendants answered, setting up cates, and the same proceedings shall be claims adverse to plaintiff, but pending the had as when held by an individual: Provid- action the plaintiff and the defendant MCed, that summons may be served or notice Caw adjusted their differences, and a supplegiven exclusively by publication in one gen- mental answer was filed showing such settleeral notice, describing the property as the

ment. The issue which was tried was that same is described on the tax rolls. Said cer- made by the complaint and defendant Teabo's tificates of delinquency issued to the county answer. Both parties admit that the land in may be issued in one general certificate in question was conveyed by the United States book form including all property, and the by patent to Marcellus Spott, an Indian. In proceedings to foreclose the liens against January, 1903, said Spott died intestate, and said property may be brought in one action he was at the time of his death the owner and all persons interested in any of the pron- of the land in question. The plaintiff alleges erty involved in said proceedings may be that Spott left surviving him a brother co-defendants in said action, and if unknown known as James Coates, and that said Coates may be therein named as unknown owners, was the sole surviving heir at law of said and the publication of such notice shall be Spott. In June, 1903, James Coates died insufficient service thereof on all persons inter- testate and without issue, leaving as his sole ested in the property described therein."

heir at law his widow, Ann Coates, the plainIt seems to me the requirements of the tiff in this cause. The defendant Teabo delast section that the county treasurer shall nies that Coates was an heir of Spott, and proceed to foreclose the certificates of delin- avers that one Harriet was a full sister of quency filed with the clerk with the legal | Spott; that she was lawfully married to Joassistance therein provided for; that the seph Teabo, Sr., and that five children, inproceedings may be brought in one action cluding the defendant Joseph Teabo, were against all parties in interest; that certain the issue of said marriage; that all of said persons shall be named as defendants, etc.- children except the defendant Joseph Teabo are utterly inconsistent with the holding that died without issue before the commencement the foreclosure proceedings are commenced

of this action; that said Harriet died intesby simply filing the certificates of delin- tate in the year 1883, leaving the defendant quency with the county clerk. I am there- Joseph Teabo as her sole heir. These allefore of opinion that the proceedings before

gations are denied by the plaintiff, and, upon this court were not commenced within the the issues thus formed the cause was tried. time limited by law, and that the judgment | It will be seen that the plaintiff traces her should be reversed.

claim of title to the land by descent from
Spott to his brother Coates, and from the lat-
ter to her as his surviving wife. The defend-

ant Teabo traces his claim by descent from (44 Wash. 271)

Spott to himself as the sole surviving heir of
COATES V. TEABO et al.

Harriet, who is alleged to have been a sister of (Supreme Court of Washington. Nov. 5, 1906.)

Nov. 5, 1906.) Spott. The court gave judgment against de

fendant Teabo, and he has appealed. 1. QUIETING TITLE-CLAIM OF TITLE-BURDEN OF PROOF.

The sole questions presented by the appeal A defendant in a suit to quiet title, who are based upon the court's findings as to the ciaims title through an ancestor alleged to have facts. It is conceded that, if Coates was a been an heir of the patentee under whom plaintiff claims, has the burden of proving heirship

brother of Spott, he became an heir at law between his ancestor and the patentee.

of Spott. While appellant denied such heir[Ed. Note. For cases in point, see vol. 41, ship, yet we think the evidence overwhelmCent. Dig. Quieting Title, $ 89.]

ingly establishes that Spott and Coates were

brothers. Coates therefore inherited at least claim on the part of defendant. Defendant faila part of the land, and the respondent, as

ed to make any payment, and plaintiff sued to

quiet title. Held, that plaintiff and defendant his surviving wife, seems to have been his

were tenants in common, and plaintiff was not sole heir at law. We at least find no conten- entitled to enforce a forfeiture, and defendant tion that she was not such sole heir. She was entitled to a decree declaring him to be therefore inherited the interest of Coates,

owner of an undivided one-half interest in the

lands, on the payment of one-half of the purwhatever that may have been. Under the

chase price and any other sums plaintiff might record Coates inherited all the land from have paid, with interest. Spott, unless the said Harriet was a sister [Ed. Note.-For cases in point, sce vol. 45, of Spott and Coates, in which event the ap

Cent, Dig. Tenancy in Common, $$ 8-12.] pellant, as the son of Harriet, inherited from

Appeal from Superior Court, Peirce CounSpott the interest that would have gone to

ty; W. 0. Chapman, Judge. appellant's mother if she had survived

Action by James J. Anderson and wife The chief contention is whether the evidence

against C. A. Snowden and wife. From a establishes that Harriet was a sister of Spott judgment dismissing the action, all parties apand Coates. The court found that it does peal. Reversed and remanded, with direcnot. We have carefully read all the evi- tions. dence, the record thereof being somewhat

Hudson & Holt and H. P. Burdick, for voluminous upon this subject. Many wit

plaintiffs. Fogg & Fogg, for defendants. nesses, both Indians and white persons, testified, and a number of Indians testified through an interpreter. It would not be

RUDKIN, J. This is an action to quiet profitable to undertake an analysis here of

title. The material fact occurring prior to

the 5th day of December, 1904, is recited and the extensive testimony. It must be said that there is conflict, but the trial court ob- . embodied in a written memorandum of that

date prepared by the plaintiff James J. Anderserved and heard all the witnesses, and de

son and signed by him and the defendant C. termined that appellant had not shown by a

A. Snowden. The memorandum is as follows: preponderance of the testimony that Har

"This meinorandum witnesseth: That hereriet was a sister of Spott and Coates. The

tofore in the month of September, 1904, the burden was upon appellant to show such fact.

undersigned entered into three contracts of The opportunity of the trial court to hear

purchase of thirty-two acres of land, being all and observe the witnesses is valuable in

of the N. E. quarter of S. E. quarter, section every case for the purpose of determining the

two, township 20 north, range 3 east, of w. weight that shall be given to the testimony

M., excepting a strip of eight acres off the an opportunity not afforded to this court. We think that the trial court's opportunity

east side of said forty-acre tract belonging

to James Alexander, from James Brewer, in that regard was particularly valuable in

David Brewer, and Louisa Jackson; the whole this case. There is unquestionably evidence

purchase price of said thirty-two acres to be to sustain the findings, and we do not think

$4,800. That towards the purchase price of we should say from the record before us,

said lands the undersigned, C. A. Snowden, reinforced by the fact that the trial court

furnished the sum of two hundred dollars in saw and heard all the witnesses, that the

cash, and has further paid the sum of seven findings are against the weight of the evi

dollars as interest upon one of the notes heredence.

inafter mentioned. That the undersigned, The judgment is affirmed.

James J. Anderson, has paid towards the

purchase price of said lands the sum of one MOUNT, C. J., and FULLERTON, RUD

hundred dollars in cash, and has further paid KIN, ROOT, CROW, and DUXBAR, JJ.,

on account of said lands the following sums: concur.

For abstract of title, $12.50; for surveying,

$6; for recording contracts and deeds, $6.50; (44 Wash. 274)

for interest on notes hereinafter mentioned, ANDERSON et ux. V. SNOWDEN et ux.

$19. That the undersigned have borrowell

, (Supreme Court of Washington. Nov. 5, 1906.)

from the Pacific National Bank $650, evi

denced by two notes, one being for $350 and TENANCY IN COMMON-MUTUAL RIGIITS AND DUTIES–CONTRIBUTION.

one being for $300, the proceeds of which Plaintiff and defendant contracted to pur- notes were paid on account of said lands. chase lands, and in order to complete the pur- That in order to complete the purchase of chase caused the lands to be conveyed to parties

said lands the undersigned obtained from E. who advanced the purchase price; it being understood between plaintiff and defendant and E. Cushman the sum of $1,450, and as secursuch parties that the lands should be reconveyed ity for same had a portion of said lands deedto plaintiff on repayment of the advances, and

ed to said E. E. Cushman, taking back from it being agreed between plaintiff and defendant

said Cushman a contract for the reconveyance that each should have an equal share in the lands, and each contribute one-half to the mon- of said portion of said lands upon payment to eys paid or to be paid. Subsequently, plaintiff him of $1,812.50; and also obtained from notified defendant that, in case he did not meet

George P. Wright and Mrs. Mary Johnson his portion of the amount necessary to complete the payment of the advances, plaintiff would

the sum of $2,400, and had a portion of sail make the payment, and refuse to recognize any lands deeded to said Mrs. Johnson and said

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George P. Wright as security for same, tak- lars ($1,036.25); and in case of your failing back from said Mrs. Johnson and Geo. ure to contribute said sum towards the payP. Wright a contract for reconveyance of said ment to said Cushman on or before October lands on payment to them of $3,000. That 1st, 1905, according to the terms of said the undersigned, C. A. Snowden and James contract, all right or interest that you may J. Anderson, have each an equal share in have in or to same will at once be forfeited. the contracts for reconveyance of said lands You are further notified that in case of your by said Cushman, Wright, and Johnson, sub- failure to meet your portion of the amount ject to the contribution and payment by each necessary to complete the payments under of one-half of all moneys heretofore paid or the said option contracts, or either of them, as to be paid on account of the purchase of above set forth, and in case I shall elect to said lands: the intention being that they and do, at my own cost and expense, make shall each bear an equal share of the sums said payments, or either of them, I shall then above mentioned as having been paid out, and refuse to recognize any claim that you or any an equal share of amounts to be paid in sat- one claiming through you may make under isfaction of said notes when same are to be i and by virtue of said agreement between you paid, the various sums so paid out to be ad- and myself as to the land so purchased by justed between them that each shall bear an

me. This notice is given in order to give you equal part of the same in the aggregate.

every opportunity to protect any rights that That the said contracts of reconveyance have

you may have in the matters referred to been made in the name of James J. Ander

should you see fit to do so. Yours truly, Jas. son for convenience, this memorandum being

J. Anderson." Snowden failed to comply made to evidence the fact that said C. A.

with the requirements of the notice, and Snowden has an equal share in same on the

thereupon Anderson paid the several amounts conditions above stated. Dated, December

due Cushman and Wright and Johnson, and 5th, 1904. Made in duplicate. Jas. J. Ander

took from them conveyances of the property son. C. A. Snowden."

referred to in the memorandum. Since the Some time thereafter and prior to the 1st

service of this notice and the payments to day of September, 1905, Anderson paid to

Cushman, Wright, and Johnson, Anderson the Pacific National Bank the two promissory notes referred to in the memorandum, and has refused to recognize Snowden as having

any interest in the property, and on Novemon the latter date served on the defendant

ber 15, 1905, brought the present action to Snowden the following written notice: “Ta

quiet title. coma, Washington, September 1st, 1905. Mr.

On the foregoing facts the plaintiffs conC. A. Snowden-Dear Sir: Referring to a

tend that the defendants have forfeited any certain written memorandum or agreement

and all interests they may have had in the signed by you and myself, of date December 5th, 1904, with regard to a certain option

property by failure to pay their portion of

the purchase price. The defendants, on the or contract with George P. Wright and Mrs.

other hand, have filed a .cross-complaint, and Mary Johnson, and also with regard to a

ask that they be declared the owners of an similar contract with E. E. Cushman, I write

undivided one-half interest in the property, this to notify you that the time limit under the contract with George P. Wright and Mrs.

subject to the payment of their portion of Mary Johnson expires to-day, September 1st,

the purchase price. The court below found 1905; and to further notify you that the

the facts substantially as above set forth,

and dismissed the action, without granting amount necessary to be paid by you in order to protect any right or interest that you may

any relief to either party. From this judghave under or in said contract, is the sum

ment both parties have appealed, and will of sixteen hundred and ninety dollars ($1,690),

hereafter be referred to as designated in the which said sum you are hereby notified to

court below. contribute towards the payment to said

The plaintiffs contend, if we understand George P. Wright and Mrs. Mary Johnson,

them correctly, that the relationship existing according to said contract with them, on this

between themselves and the defendants was day; and in case of your failure to contribute

that of vendors and purchasers, and that by said sum on this day for said purpose, any failure to pay the purchase price on demand and all right or interest that you may have the defendants forfeited all rights under their in or to said contract will be at once forfeited. contract. If their premise is correct, the conFurther referring to contract with E, E. Cush-clusion might follow, but we think this is a man mentioned in said agreement between mistaken idea as to the relationship created you and myself, I notify you that the time and existing between the parties. There is limit for the performance of said contract no more reason for holding that the defendwith Mr. Cushman has been extended to and ants acquired their rights by purchase from including October 1st, 1905; and further, that. the plaintiffs than for holding that the plainthe amount necessary to be paid by you on tiffs acquired their rights by purchase from or before that date, in order to protect any the defendants. Under the testimony, the right or interest that you may have in or to findings of the court, and more especially the said contract with Mr. Cushman, is the sum written memorandum prepared by one of the of ten hundred and thirty-six and 25/100 dol- | plaintiffs, the parties to this action were joint

the plaintiffs' title, as prayed in their complaint. Neither party will recover costs on this appeal.

MOUNT, C. J., and FULLERTON, HADLEY, and DUNBAR, JJ., concur. ROOT and CROW, JJ., not sitting.

(44 Wash. 313) FOSTER et al. v. TAYLOR et ux. (Supreme Court of Wasbington. Nov. 9, 1906.) BROKERS-CONTRACT-PERFORMANCE.

The owner of land agreed to pay a broker 5 per cent. commission if he found a purchaser who would pay $3,000. Thereafter the owner went away, but, before leaving, told the broker to consult C. and deal with him in the owner's place. Subsequently C. authorized a sale for $3,000 net to the owner, agreeing that the broker might have anything above that. The owner was informed of the sale made for $3,500, the contract calling for a good title, but refused to execute a proper deed. Held, that the broker was entitled to recover the $500.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, SS 91-96.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by John R. Foster and anothier against II. C. Taylor and wife. From a judgment in favor of plaintiffs, defendants appeal. Aflirmed.

Ira Bronson and D. B. Trefethen, for appellants. Hastings & Stedman, for respondents.

purchasers or tenants in common, and their rights and obligations must be determined by the law governing that relation, rather than the law applicable to the relation of vendor and purchaser. Their common property was held under deeds to secure a common indebtedness. Each tenant in common was a surety for the other. The only remedy of either was to pay the common indebtedness, and be subrogated to the rights of the creditors against the common property. The remedy of the plaintiffs was by contribution, and not by forfeiture. One tenant in coinmon cannot forfeit the rights of his co-tenant in their common property by notice or demand. The claim of the defendants does not appeal very strongly to a court of equity, and it may well be that they are endeavoring to speculate on the capital of others; but this was one of the incidents of the bargain the plaintiffs entered into, against which a court can grant no relief. As said by the court in Calkins v. Steinbach (Cal.) 4 Pac. 1103: “The conduct of the defendant, Steinbach, as evidenced by his answer, does not commend itself to a court of equity, but it has not worked a forfeiture of any of his interest in the lands in question. Ile is bound to the plaintiff for such portion of the redemption money, with interest, as his interest in the lands bears to the whole thereof; and as security for payment of such sum plaintiff holds an equitable lien upon all of the interest of Steinbach in the property. To enforce the relative rights and obligations of the respective parties, it is necessary that this amount be judicially ascertained, a day fixed within which it be paid, and a decree to the effect that in default of such payment defendant be forever foreclosed of all right or interest in the lands.” The plaintiffs were therefore not entitled to the relief demanded in their complaint. Nor were the defendants entitled to the relief demanded in their cross-complaint. They could not appeal to a court of equity to declare them the owners of an undivided one-half interest in the property without first paying or tendering their portion of the purchase price. But, while neither party was entitled to the relief demanded, nevertheless, the court had jurisdiction of the parties and the subject-matter of the action, and should have granted to the parties such relief as they were entitled to under the facts.

The judgment is therefore reversed, and the cause remanded to the court below, with directions to ascertain the amount the defendants should pay to make up their one-half of the purchase price, and any other sums the plaintiffs may have paid on account of the common property, with interest from date of payment, and to enter a decree declaring the defendants the owners of an undivided onehalf interest in the premises in controversy upon the payment of the sums thus ascertained within 10 days from the date of the decree; and, if they fail to make payments within that time, to enter a decree quieting

DUNDAR, J. The complaint alleges, in substance, that the respondents, who are real estate brokers in the city of Seattle, were employed by H. C. Taylor, one of the appellants, to sell the property described in the complaint, first for $2,000, then for $2,500. then for $3,000, and agreed to pay the usual 5 per cent. commission; that shortly before the appellant Taylor left the city he told Mr. Knipe, one of the respondents, that if he had an opportunity to sell the property he could go to one McConnaughey, who he claimed had some interest in the property, and deal with him just the same as directly with Taylor; that having a chance to sell the property, Knipe sought McConnaughey, and McConnaughey told him he could sell it, and all · over $3,000 that he (Knipe) obtained he could have as his commission; that he obtained a purchaser, one Sol Asher, for the sum of $3,500, receiving $100 from Asher to bind the bargain; that the appellants were notified of the sale, and refused to comply with their contract, and this action was brought to recover the $500 claimed to be due respondents. The answer was in effect a general denial. The case was tried by the court, •who found the issues in favor of the plaintiffs, respondents here.

As was said by the court in an opinion accompanying the record, we do not see how this case could be otherwise decided than in favor of the respondents. The testimony

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