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(44 Wash. 132)

titled "An ordinance laying out and estabALBRING et al. v. PETRONIO.

lishing a public street in the city of Seattle, (Supreme Court of Washington. Oct. 13, 1906.)

comniencing on the south margin of Yakima

avenue and running thence southeasterly 1. TAXATION_TAX SALES-STATUTES. Ballinger's Ann. Codes & St. 88 810, 814,

across block two (2) of Baxter's addition to 815, providing for the sale of lands for the non

the city of Seattle and across lot one (1) payment of delinquent taxes and assessinents, of block three (3) of said addition to an inmust be strictly pursued in order to sustain a

tersection with the west margin of Thirtieth title thereunder.

Avenue South at a point sixty (60) feet south [Ed. Note.--For cases in point, see vol. 45, Cent. Dig. Taxation, 88 1203, 1264.)

of the south margin of Norman street, and

providing for the taking and damaging of the 2. SAME-DEFECTIVE PROCEEDINGS-REDEMPTION.

land and other property necessary therefor, Ballinger's Ann. Codes & St. $ 810, provides and for the ascertainment and payment of that when land is sold for delinquent assess- the just compensation to be made for the ments, the treasurer shall issue a certificate to ! the purchaser which must be recorded within

private property to be taken or damaged three months in the office of the county auditor. : for said purpose, and for an assessment upon Section 814 secures to the purchaser a lien on the property benefited for the purpose of the land for the amount paid, and for all taxes

making such compensation.” After the pasand special assessments, interests, etc., which may be subsequently levied, and contemplates

sage and approval of said ordinance, the city that the purchaser during the period of redemp- filed in the superior court of King county tion guarantied by section 815 shall pay all its petition, praying that just compensation taxes and public charges against the property. Held, that where neither the purchaser of land

be made for the lands and property to be for delinquent special assessments, nor his as

taken and damaged. Afterwards, it filed signee, ever made any payments of general taxes a supplemental petition for the appointment on the land, after obtaining a certificate and

of commissioners to make a special assessmade no tender of such payments nor any effort to give the original owners notice of such sale,

ment on the lands to be specially benefited the proceedings were fatally defective, and the by said improvement. An assessment distowners were entitled to redeem.

rict was created, which included said lots 3. SAME TIME OF REDEMPTION-EXPIRATION

3 and 4, and an assessment of $12 was levied -NOTICE. Ballinger's Ann. Codes & St. $ 815, provides

against each of them. Afterwards said asthat where land has been sold for non payment of sessment was certified to the treasurer of delinquent assessments, before a deed shall be said city, who, on the 27th day of March, made, the holder of the certificate of sale shall

1901, sold said lots for the purpose of colhave notified the owners that he holds the certificate, and that he will demand a deed, which

lecting said assessments which had become notice shall be given by personal service or publi- delinquent. Said sale was made to one Carcation as provided. Held, that such section only rie B. Osborne, who paid $30 for lot 3 and authorized service of publication after the certificate holder has made an honest and diligent

$27 for lot 4, and said treasurer issued to search for the owner in order to make personal her two certificates of purchase which were service of such notice.

recorded in the office of the auditor of King [Ed. Note.-For cases in point. see vol. 45, county, Wash. Afterwards said Carrie B. Cent. Dig. Taxation, $$ 1424, 1425.]

Osborne assigned said certificates to the de Appeal from Superior Court, King County; fendant Emanuel Petronio. On the 23d day John B. Yakey, Judge.

of October, 1903, the period of redemption Action by A. J. Albring and another against having expired, and said Emanuel Petronio Emanuel Petronio to redeem certain land

having published notice to the plaintiff A. J. from a sale for delinquent special assess- Albring, said city treasurer executed to him ments. From a decree dismissing the com- two separate deeds for said lots, which he plaint, plaintiffs appeal. Reversed and re- caused to be recorded on October 31, 1908. manded.

It appears from undisputed evidence that Harrison B. Martin and Byers & Byers, the plaintiffs A. J. Albring and wife at all for appellants. William Hickman Moore, times from the date of their purchase of G. Edgar Hayes, and Dallas V. Halverstad, said real estate in 1890, until the commencefor respondent.

ment of this action, resided in the city of

Spokane; that their place of residence was · CROW, J. On December 19, 1890, the unknown to the commissioners who made plaintiffs A. J. Albring and Alice F. Albring, said assessment, to the officials of the city of husband and wife, purchased in the name of Seattle, or to said Emanuel Petronio, or to said A. J. Albring, as their community prop- any of them; but was known at the office erty, lots 3 and 4 in block 2 of Prospect of the treasurer of King county; that said Terrace Second addition to the city of Seat- plaintiffs at no time prior to the execution tle, and having promptly recorded their deed, and recording of said deeds to Emanuel Pe. have ever since owned the same, unless their tronio had any actual notice or knowledge, title has been divested by the proceedings or means of obtaining knowledge, th aid hereinafter mentioned. On October 30, 1899, ordinance had been passed; that said imin pursuance of the provisions of the eminent provement had been made; that said assessdomain act of 1893, Ballinger's Ann, Codes ment had been levied; that the same had be & St. § 775 et seq., the council of the city come delinquent; that said sale had been of Seattle passed Ordinance No. 5624, en. made, or that said deeds had been executed

87 P.-4

and delivered to the defendant Emanuel Pe- | possibly do so. By reason of the view which tronio. In fact, they were at all of said times we take of said act in so far as it affects this entirely ignorant of the pendency and prog- action, it will not be necessary to question ress of any of said proceedings. It appears its constitutionality in any particular. The that said lots, although within the assess- record before us shows that all notices to ment district, were located at a point of from the appellants during the entire course of one-fourth to one-half a mile distant from these proceedings were given by publication, said improvement; that had the plaintiffs their address being unknown to any of the gone upon their property and inspected the city officials or the respondent. The pursame, they would not have observed any im

pose of such publications was to advise the provements being made, nor would they have parties interested of the nature and pendencome into the possession of facts tending to cy of the various proceedings, so that, if posput them upon inquiry; that said lots were

sible, they might have actual notice of the at all of said times vacant and unimproved;

same. It is conceded that such a result was and that they were of the reasonable total

not accomplished in this case. The appelvalue of $1,000. During toe entire two-year

lants now contend that said eminent domain period of redemption granted by section 815,

act, if constitutional, should be strictly conBallinger's Ann. Codes & St. and at all times

strued, as it strongly derogates from usually prior to the execution and delivery of said

accepted ideas of property rights. We think deeds, the said plaintiffs promptly paid all

this contention should be sustained. The regeneral taxes levied against said lots, re

spondent's only claim of title is under these mitting the same to the treasurer of King proceedings. He has purchased property of county, Wash. Their first knowledge of said

the value of $1,000 for the small sum of $57 assessment proceedings or of the execution

with such additional expenses and taxes as and delivery of said deeds was obtained in

he may have since disbursed, which are merethe year 1904, when they tendered payment

ly nominal. If he is to obtain and retain of the state and county taxes for the year

the legal title, he should be permitted to do 1903, and were informed by the county treas

so only upon an exact compliance with every urer that payment had been made by the

requirement of the statute strictly construed defendant Petronio, who claimed to own the

as against him. Section 810, Ballinger's Ann. property. Thereupon, the plaintiffs made an

Codes & St., provides that, when the sale is investigation, and for the first time learned

first made by the treasurer, he shall issue the facts. They immediately tendered to the

to the purchaser a certificate which must be said Emanuel Petronio the full amount of

recorded in the office of the county auditor said assessments with all penalties, interest,

within three months froin the date thereof. and costs, and all subsequent assessments

Section 814, Ballinger's Ann. Codes & St., seand taxes paid by him, which tender being refused this action was instituted to set aside

cures to the purchaser holding such certifisaid certificates of purchase and tax deeds,

cate a lien on the lot or parcel of land sold to declare the same void, to quiet their title to

for the amount paid by him, as well as for said property, and to permit the plaintiffs to

all taxes and special assessments and all redeem. The plaintiffs have pleaded all of

interest, penalties, cost, and charges thereon, the facts above set forth, and the defendant

whether levied previously or subsequently to in his answer has also pleaded as the source

such sale, and whether for state, county, city, of his alleged title the various proceedings

or town purposes, subsequently paid by him, culminating in said assessment, sale, and

and that he shall be entitled to interest at deeds. There is no substantial dispute as

the rate of 20 per cent. per annum on the to the facts involved in this case. The trial original amount paid, and such subsequent court, after refusing findings requested by payments, from the date of the respective the plaintiffs without making any findings payments. This provision undoubtedly conwhatever, entered a decree dismissing their templates that the certificate shall not concomplaint. From said final judgment this vey a title, but shall only secure to the purappeal has been taken.

chaser during the period of redemption a lien The appellants have made numerous as

for the sums mentioned. It also contemsignments of error, contending in substance plates that the holder of said certificate shall, (1) that the statute under which said pro- during the period of redemption which is ceedings and pretended sale have been con- guarantied by section 815, pay all taxes and ducted is unconstitutional; (2) that their public charges against said property whether property has been taken without due process the same be for state, county, city, or town of law; (3) that they were entitled to judg- purposes. Neither the respondent nor his ment upon the pleadings for which their mo- assignor ever made any payments of general tion was denied; and (4) that if said emin- taxes during said period. The record does ent domain act is held to be constitutional, it not show that they ever tendered any such must be strictly construed as against the re- payments, nor does it explain why such spondent who claims title under the proceed payments were not made by them. We think ings therein authorized. It is always the one purpose of this provision for the payment duty of the courts to sustain the constitution- of such taxes by the holder of the certificate ality of legislative enactments if they can is to furnish an additional means of actual notice to the owners of the property that the dress of the appellants, which would have assessment has been levied, that the pre- enabled him to serve them with personal liminary sale has been made, and that the notice. This was an act of omission upon certificate has been issued, so that they may his part for which the appellants are in no obtain such actual knowledge in ample time way responsible, but which resulted in preto redeem. In this instance the appellants serving their profound and excusable ignorwere deprived of this opportunity, the re- ance of any of the proceedings. Said section, spondent and his assignor having failed to 815 further provides that the treasurer's deed make such payments. Section 815, after pro- shall be executed only after payment of all viding for a period of redemption of two subsequent taxes and special assessments on years, also provides that said redemption said lots. This provision evidently contemmay be made by the owner upon payment plates that, as a condition precedent to the of the amount for which the lots were sold, obtaining of said deeds, a showing must be with interest at the rate of 20 per cent. per made to the city treasurer that all taxes and annum, together with all taxes, special as- special assessments which have become due sessments and interest, penalties, and charges either prior or subsequent to the original thereon paid by the purchaser with like inter- sale have been paid. This being true, the est thereon. Said section further provides, respondent necessarily was obliged to ascerthat unless written notice of taxes and as- tain whether said taxes and assessments had sessments subsequently paid, and the amount been paid. Had he done this, he would have thereof, shall be lodged with the treasurer, learned before the execution of the deed that redemption may be made without including their payment had been made by the appelthe same. This provision not only contem- lants, and necessarily would have also learned plates that the holder of the certificate of appellants' address. purchase shall pay these general taxes and Our view is that this statute must be other charges, but also that he shall, for the strictly construed as against the respondent; protection of his lien, file written notice of that he must be held to a complete and such payment with the city treasurer. Said exact compliance with all of its provisions section 815 further provides that, before a as a condition precedent to obtaining his deed shall be made, the holder of the cer- deeds. Had he succeeded in giving personal tificate of sale shall have notified the owners notice to the appellants, a less stringent rule of said lots or parcels of land that he holds might be invoked in his behalf. He failed said certificate, and that he will demand a to pay said taxes, to attempt their payment, deed therefor; that said notice shall be given or to explain their nonpayment by him. by personal service, or by publication in a He permitted their payment to be made by weekly newspaper published in said city once the appellants during the period of redempeach week for three successive weeks. Our tion. Ile failed to avail himself of an opporconstruction of this statute is that it con- tunity which he had during the period of retemplates a personal service if it can possibly demption for obtaining knowledge of the be made. This being true, the holder of the appellants' post-office address and place of certificate should make an honest and dili- residence, and has thereby placed himself gent search for the owner. If the owner can- in a position which he may think will exnot thus be found, then service by publica- cuse his having given them notice by publition may be made. In this instance the re- cation instead of personal service. This is spondent is not shown to have had any ac- an action in equity and, under these cirtual knowledge of the post-office address or cumstances, we think appellants are in equity residence of the appellants, nor is he shown and good conscience entitled to redeem said to have made any such search; but the property. Were we to hold that the aprecord shows that said appellants had, dur- pellants are without remedy. we would be ing the entire period of redemption, been pay- placing a construction upon said statute ing the general taxes upon this property, and which would enable unscrupulous persons that the county treasurer had their post-of- to avail themselves of its provisions as a fice address. The respondent himself failed means of fraud and oppression against into make such payment of taxes. If he was nocent owners of property. This we should acting in good faith, he could only have done not do. Our duty is to so construe it that so by reason of the fact that the payments it may be available as a reasonable and were first made with such promptness by the proper measure for the collection of delinappellants as to prevent payment by him. quent assessments as contemplated by the But if this was the case, the address of the Legislature. While there is nothing in the appellants would certainly have been obtain- record affirmatively showing any intentional able at the office of the county treasurer, and fraud on the part of the respondent, yet if could have been readily learned by the re- a purchaser at a sale of this character can spondent. If he failed to call at said office be permitted to hold his certificate for two and tender payment of the state and county years during the entire period of redemp. taxes as was his duty, he thereby either in- tion, without the payment of taxes, without tentionally or unintentionally deprived him- any showing why such payment was not self of an opportunity for learning the ad- made, without the suggestion of an effort to learn the place of residence of the true

(44 Wash. 23) owner, and can then obtain a deed depriv- DRAINAGE

DRAINAGE DIST. NO. 15 OF SKAGIT ing the ignorant and innocent owner of his COUNTY et al. V. ARMSTRONG et al. title, then the statute would become a most

(Supreme Court of Washington. Sept. 25, vicious instrument for the perpetration of

1900.) fraud. Considering the entire statute, we

1. DRAINS-ASSESSMENT OF DAMAGES AND are constrained to believe that the Legis- BENEFITS-WAIVER OF DAMAGES-EVIDENCE lature in drafting it made these various pro

-SUFFICIENCY. visions to which we have referred in order

In proceedings to assess the damages and

benefits to lands in a drainage district, it apthat every opportunity might be afforded an peared that individuals claiming damages had, owner to obtain actual notice of the assess- before the organization of the district, waived ment and sale before the period of redemption

a right to damages by an instrument reciting

that the organization of the district was of had expired. The long period of redemption

importance to them and others who declined which it guaranties, the provision for the to assist in the organization, unless the individ. payment of the taxes by the holder of the uals waived damages. The individuals showed röertificate, the requirement that notice be

that a third person interested in the organiza

tion of the district induced them to sign the given, the requirement that written notice

waiver on the representation that if they were of all taxes paid by the purchaser must not benefited, they would not be taxed. Held, he filed with the city treasurer, and the

that evidence of damages to them was properly further requirement that all taxes must be

excluded, for it was not shown that there was

an agreement that the individuals should not paid before a deed can be obtained, show a be taxed, if they were benefited, and the reprelegislative intent to require such steps to sentation made by the third person was not he taken as would ordinarily result in

the sole consideration for the waiver of dam

ages, and the third person had no authority bringing actual notice home to the owners

to release any one from payment of benefits. of the property. There has been a complete 2. SAME-WAIVER OF DAMAGES-CONSIDERAfailure upon the part of the respondent to TION-ADEQUACY. comply with these provisions. Our hold

Pending the organization of a drainage

district, individuals owning land in the proing is that, when a certificate of purchase

posed district executed a waiver of damages, is obtained, it is the duty of its holder to which recited that it was of importance to pay all general taxes and all public charges them that the district be organized and that against said property. If any reason exists

others owning property within the proposed

district declined to assist in the organization why he cannot do 'so, some affirmative show

of the district unless damages were waived. ing should be made to explain his omission. II rld, that the waiver was supported by two The appellants have at all times since sufficient considerations; one as an advantage learning of said assessment been ready

to the individuals, and the other to obtain

the assistance of the other owners, who refused and willing, and are now ready and willing

to assist unless the waiver was made. to pay said assessment, together with costs, taxes, and charges, with 20 per cent. inter

Appeal from Superior Court, Skagit Counest. In fact, they have tendered payment

ty; Geo. A. Joiner, Judge. and have kept their tenders good. We think

Action by drainage district No. 15 of Skathey are in equity entitled to redeem.

git county, by J. O. Rudene and others, It is ordered that the judgment of the

against William Armstrong and others.

There was a judgment for plaintiffs, and desuperior court be reversed, and that this (ause he remanded with instructions to

fendants appeal. Affirmed. the trial court to permit the appellants to

Million & IIouser, for appellants. McLean redeem and in doing so to ascertain the

& Wakefield, for respondents. amounts due the respondent for the disburse

MOUNT, C. J. This action was brought ments made by him with 20 per cent. interest thereon, as provided by section 814,

by the respondents to assess the damages

and benefits to lands located within a drainBallinger's Ann. Codes & St. It is further ordered that, if prior to the commencement

age district, organized pursuant to laws reof this action the full amount then due had

lating to drainage districts. Section 3715 lieen tendered by the appellants, they re

seq., 1 Ballinger's Ann. Codes & St.

The appellants have appealed from a judgcover their costs in the superior court; that otherwise the respondent recover said costs.

ment levying an assessment of $10 per acre It is further ordered that, in estimating the

for benefits accruing to their lands. At the

trial of the case the appellants sought to amount due, the appellants, if a full tender

offset damages alleged to have accrued to was made by them prior to the commencement of this action, shall be charged 20 per

them by reason of a dam which cut off nav

igation from their warehouses. It appears cent. interest on the respondent's disburse

that when the petition for the formation ments to the date of said tender only, and

of the district was being circulated, appelthat no further interest be allowed; other

lants signed a contract as follows: "Waiver wise that interest be allowed at said rate

of Damages. Whereas, it is proposed to until the date of payment. The appellants

organize a large portion of the territory will recover costs in this court.

which drains into Sullivan slough in the MOUNT, ROOT, DUNBAR, RUDKIN, and county of Skagit, Washington, into a drainHADLEY, JJ., concur.

age district, under and by virtue of the laws


of the state of Washington; and whereas, damages. We think the court properly struck it is intended to dam said slough at some out the evidence for several reasons: First, convenient point, not higher up than the the evidence does not show that Mr. Rudene bridge, or not lower down than the section agreed that appellants should not be taxed line between section 31 in township 34 and if they were benefited; second, this was not section 6 in township 33 in range 3 in said the consideration expressed in the written county; and whereas, the construction of waiver, and was clearly not the sole considersuch dam will cut off steamboat navigation ation; and, third, Mr. Rudene at no time of said slough above the proposed dam; and had any authority to release any one from whereas, certain individuals have warehouses the payment of benefits. At least, there is for the storage of grain located upon said no showing of such authority in the record slough, or the arms thereof, and said parties before us. may have cause of action against said pro- Appellants also contend that the contract posed drainage district when the same shall of waiver is not binding upon the appellants, have been organized; and whereas, it is because the waiver is not based upon a valid of importance to said individuals that said consideration. The contract of waiver states drainage district be organized, and certain the consideration as follows: "It is of imindividuals residing within the territory of portance to said individuals [meaning these said proposed drainage district decline to

appellants and others] that said drainage sign the petition of said proposed drainage district be organized and certain individuals district or assist in causing the same to be residing within the territory of the said organized, unless a waiver of damages by proposed drainage district declined to sign reason of the construction of said dam to the petition of said proposed drainage disbe made by the said individuals so inter- trict or assist in causing the same to be orested: Now, therefore, we, the undersignedganized unless a waiver of damages by reahereby waive any and all right or claims son of the construction of said dam be made to damages by reason of the construction by the several individuals so interested." of said dam and cutting off of the naviga- Two considerations were here named; one as tion of said slough, or any of the arms or an advantage to the appellants, and the other, branches thereof, and will bring no action to obtain the signatures of necessary parties for such damages, providing all of the follow- who refused to sign the petition unless such ing named individuals sign this waiver." waiver was made. Either of these consider

Appellants offered to prove that when ations was sufficient to make the waiver they signed the above waiver, one Rudene

binding upon the appellants. 9 Cyc. 330; 6 who was interested in establishing the drain- Am, & Eng. Enc. of Law (2d Ed.) p. 721 ; age district, and who was afterwards elected

1 Parsons on Contracts (8th Ed.) p. 468 et one of the commissioners of the district, seq.; Staver & Walker v. Missimer, 6 Wash. represented to appellants that, in case they 173, 32 Pac. 995, 36 Am. St. Rep. 142. signed said waiver, no assessments for bene. We think there is no merit in either of fits would be made against their lands, and

the questions presented, and the judgment that upon such representation appellants is therefore affirmed. signed the waiver, and that this was the sole consideration therefor. The court re- DUNBAR. ROOT. HADLEY, FULLERceived evidence to the effect that appellants | TON, and CROW, JJ., concur. told Rudene that they would not receive any benefits, and that Rudene agreed with them. The gist of the evidence upon this

(44 Wash. 79) point is stated by Mr. Armstrong, one of

MCAVOY V. JENNINGS. the appellants, as follows: "He [Mr. Rudene]

(Supreme Court of Washington. Sept. 25, said that we were the only ones that stood

1906.) in the way and would flood the Beaver marsh, and that country all out, so we gave


In a suit to set aside a trust deed as a in and did not want to stand in the way of fraud on the grantor's creditors, it must be a large vicinity in the Beaver marsh, and alleged and proved that the grantor was inthat is the reason we gave our granaries, solvent at the time it was made, or that an

execution has been issued and returned nulla and now they want to tax us. He said

bona, which implies insolvency. that if we were not benefited we would not

[Ed. Note.-For cases in point, see vol. 24, be taxed, and of course we talked it over Cent. Dig. Fraudulent Conveyances, $$ 128, that we would not be benefited any there,

110, 790.] and he agreed with us, and that led us to 2. ASSIGNMENT FOR BENEFIT OF CREDITORS believe we never would be taxed." The court,


An insolvent debtor being entitled to preupon motion of respondents, struck out all

fer his creditors, a deed of a debtor's property the evidence relating to damages on account to a trustee, for the purpose of having the same of the warehouses. Appellants contend up- sold and applying the proceeds ratably among on this appeal that the court erred in strik

a list of creditors was not void, because it ing this testimony, and in holding that the

contained a condition that, before any of the

creditors should be entitled to receive his pro contract above set out is a binding waiver of rata under the terms of the deed, he should


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