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ting forth the facts in reference to the published notice and the procedure leading up to the judgment, and asked for an order setting aside the judgment, and directing the republication of the notice for the foreclosure of said tax liens. Such an order was made and filed in the cause. Thereafter notice was published, and the defendant Eugene France, who is the owner of certain property sought to be foreclosed, appeared and contested the right of the county to foreclose in the above manner. His special appearance raising the question of jurisdiction having been overruled, he answered, setting up the above-stated facts. The cause was then tried, and judgment was entered foreclosing all the certificates of delinquency, including those issued against the lands of defendant France, who has appealed.

Appellant admits that the certificates were issued and filed with the clerk of the superior court, as required by law, but urges that compliance has not been made with section 8705, Pierce's Code (Laws 1901, p. 386, c. 178, § 4), in that the proceeding to foreclose was not commenced before January 1, 1902. The certificates were filed with the clerk before that time, and, if that constituted a commencement of the foreclosure proceeding, it was commenced within the statutory time. It will be observed that the section cited provides that upon certificates for the particular taxes included in this action, viz., those for 1895 and prior years, held by the county, foreclosure proceedings must have been commenced prior to January 1, 1902. The foreclosure proceeding is a special statutory one, and no formal complaint is required to be filed. Section 8694, Pierce's Code (Laws 1901, p. 385, c. 178, § 3), merely provides that the county treasurer shall first file the certificates with the clerk, and that the subsequent procedure shall be as in the case of an individual certificate holder. In the latter case, section 8691, Pierce's Code (Laws 1901, p. 383, c. 178. § 1), provides merely for the giving of notice that the holder I will apply to the superior court for judg ment. We think the proceeding to foreclose the county certificates is initiated by the filing of the certificates with the clerk, and that it is thereby commenced. This suit was therefore commenced before January 1, 1902, as required by law.

It is further contended that, if the action was commenced by the filing of the certificates, the court has nevertheless lost jurisdiction by reason of failure to publish the notice within 90 days from the date of such filing. Our attention is called to section 8692, Pierce's Code (Ballinger's Ann. Codes & St. 1751), which provides that the summons in this special proceeding shall be served in the same manner as summons in a civil action is served in the superior court. It is also pointed out that section 326, Pierce's Code (Ballinger's Ann. Codes & St. § 4869), provides that a civil action may be com

menced by the filing of a complaint with the clerk of the court; but that, unless service has been had prior to the filing of the complaint, one or more defendants must be served personally, or publication service com menced within 90 days from the filing of the complaint. In this case there was no personal service, and publication was not made within 90 days after the certificates were filed. If this proceeding is governed entirely by the general statute, appellant's contention must prevail. The only service provided for county foreclosures is by publication, and section 8692, supra, refers only to the manner of making such service; that is to say, the time the publication shall run, the place where the summons shall be published, and other details pertaining to the method of making publication service. As to the time when the actual service may be made, we find that section 8691, Pierce's Code (Laws 1891, p. 383, c. 178, § 1), provides that the individual certificate holder may give the notice "any time after the expiration of three years from the original date of delinquency." There is manifestly no limitation as to the time when the individual certificate holder may give his notice after the right to give it accrues. The same must be true as to counties, for after the certificates have been filed "the same proceedings shall be had as when held by an individual." We therefore conclude that, under the special statute, the county was not required to commence publication within 90 days, as is required in ordinary civil actions.

The further point is made that the summons last published was insufficient. It is entitled: "In the Superior Court of the State of Washington for the County of Chehalis. State of Washington, County of Chehalis, Plaintiff, v. John Vosper, etc., Defendants." Appellant asks the question whether the state of Washington or the county of Chehalis is plaintiff under the above caption. While it is true the caption is somewhat informal, yet the body of the summons clearly describes the county of Chehalis as the plaintiff, and it is manifest that no one could have been misled by the informality in the caption.

The judgment is affirmed.

MOUNT, C. J., and FULLERTON, CROW. and DUNBAR, JJ., concur.

RUDKIN, J. (dissenting). Section 8705, Pierce's Code (Laws 1891, p. 386. c. 178, § 4), provides "that on all certificates of delinquency issued for the taxes of 1895 and prior years, proceedings for foreclosure under the provisions of this act may commence on and after December 1, 1900, and not sooner; and on certificates of delinquency for 1895, and prior years, held by the county [and such are the certificates involved in this case], proceedings must be commenced on or before the first day of January, 1902, by the several

county treasurers under the provisions of this act." Section 8694, Pierce's Code (Laws 1901, p. 385, c. 178, § 3), provides that: "After the expiration of five years from the date of delinquency, when any property remains on the tax rolls for which no certificate of delinquency has been issued, the county treasurer shall proceed to issue certificates of delinquency on said property to the county, and shall file said certificates when completed with the clerk of the court, and the treasurer shall thereupon, with such legal assistance as the county commissioners shall provide in counties having a population of thirty thousand or more, and with the assistance of the county prosecuting attorney in counties having a population of less than thirty thousand, proceed to foreclose in the name of the county, the tax liens embraced in such certificates, and the same proceedings shall be had as when held by an individual: Provided, that summons may be served or notice given exclusively by publication in one general notice, describing the property as the same is described on the tax rolls. Said certificates of delinquency issued to the county may be issued in one general certificate in book form including all property, and the proceedings to foreclose the liens against said property may be brought in one action and all persons interested in any of the property involved in said proceedings may be co-defendants in said action, and if unknown may be therein named as unknown owners, and the publication of such notice shall be sufficient service thereof on all persons interested in the property described therein."

It seems to me the requirements of the last section-that the county treasurer shall proceed to foreclose the certificates of delinquency filed with the clerk with the legal assistance therein provided for; that the proceedings may be brought in one action against all parties in interest; that certain persons shall be named as defendants, etc.are utterly inconsistent with the holding that the foreclosure proceedings are commenced by simply filing the certificates of delinquency with the county clerk. I am therefore of opinion that the proceedings before this court were not commenced within the time limited by law, and that the judgment should be reversed.

(44 Wash. 271)

COATES v. TEABO et al. (Supreme Court of Washington. Nov. 5, 1906.) 1. QUIETING TITLE-CLAIM OF TITLE-BURDEN OF PROOF.

A defendant in a suit to quiet title, who claims title through an ancestor alleged to have been an heir of the patentee under whom plaintiff claims, has the burden of proving heirship between his ancestor and the patentee.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, § 89.]

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HADLEY, J. This action was brought to quiet title to certain land, and Samuel R. McCaw and Joseph Teabo were made defendants. Both defendants answered, setting up claims adverse to plaintiff, but pending the action the plaintiff and the defendant McCaw adjusted their differences, and a supplemental answer was filed showing such settlement. The issue which was tried was that made by the complaint and defendant Teabo's answer. Both parties admit that the land in question was conveyed by the United States by patent to Marcellus Spott, an Indian. In January, 1903, said Spott died intestate, and he was at the time of his death the owner of the land in question. The plaintiff alleges that Spott left surviving him a brother known as James Coates, and that said Coates was the sole surviving heir at law of said Spott. In June, 1903, James Coates died intestate and without issue, leaving as his sole heir at law his widow, Ann Coates, the plaintiff in this cause. The defendant Teabo denies that Coates was an heir of Spott, and avers that one IIarriet was a full sister of Spott; that she was lawfully married to Joseph Teabo, Sr., and that five children, including the defendant Joseph Teabo, were the issue of said marriage; that all of said children except the defendant Joseph Teabo died without issue before the commencement of this action; that said Harriet died intestate in the year 1883, leaving the defendant Joseph Teabo as her sole heir. These allegations are denied by the plaintiff, and, upon the issues thus formed the cause was tried. It will be seen that the plaintiff traces her claim of title to the land by descent from Spott to his brother Coates, and from the latter to her as his surviving wife. The defendant Teabo traces his claim by descent from Spott to himself as the sole surviving heir of Harriet, who is alleged to have been a sister of Spott. The court gave judgment against defendant Teabo, and he has appealed.

The sole questions presented by the appeal are based upon the court's findings as to the facts. It is conceded that, if Coates was a brother of Spott, he became an heir at law of Spott. While appellant denied such heirship, yet we think the evidence overwhelmingly establishes that Spott and Coates were

claim on the part of defendant. Defendant failed to make any payment, and plaintiff sued to quiet title. Held, that plaintiff and defendant were tenants in common, and plaintiff was not entitled to enforce a forfeiture, and defendant was entitled to a decree declaring him to be owner of an undivided one-half interest in the lands, on the payment of one-half of the purchase price and any other sums plaintiff might have paid, with interest.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Tenancy in Common, §§ 8-12.]

Appeal from Superior Court, Peirce County; W. O. Chapman, Judge.

Action by James J. Anderson and wife against C. A. Snowden and wife. From a judgment dismissing the action, all parties appeal. Reversed and remanded, with direc tions.

Hudson & Holt and H. P. Burdick, for plaintiffs. Fogg & Fogg, for defendants.

brothers. Coates therefore inherited at least a part of the land, and the respondent, as his surviving wife, seems to have been his sole heir at law. We at least find no contention that she was not such sole heir. She therefore inherited the interest of Coates, whatever that may have been. Under the record Coates inherited all the land from Spott, unless the said Harriet was a sister of Spott and Coates, in which event the appellant, as the son of Harriet, inherited from Spott the interest that would have gone to appellant's mother if she had survived Spott. The chief contention is whether the evidence establishes that Harriet was a sister of Spott and Coates. The court found that it does not. We have carefully read all the evidence, the record thereof being somewhat voluminous upon this subject. Many witnesses, both Indians and white persons, testified, and a number of Indians testified through an interpreter. It would not be profitable to undertake an analysis here of the extensive testimony. It must be said that there is conflict, but the trial court ob-.embodied in a written memorandum of that served and heard all the witnesses, and determined that appellant had not shown by a preponderance of the testimony that Harriet was a sister of Spott and Coates. The burden was upon appellant to show such fact. The opportunity of the trial court to hear and observe the witnesses is valuable in every case for the purpose of determining the weight that shall be given to the testimonyan opportunity not afforded to this court. We think that the trial court's opportunity in that regard was particularly valuable in this case. There is unquestionably evidence to sustain the findings, and we do not think we should say from the record before us, reinforced by the fact that the trial court saw and heard all the witnesses. that the findings are against the weight of the evidence.

The judgment is affirmed.

MOUNT. C. J., and FULLERTON, RUDKIN, ROOT, CROW, and DUNBAR, JJ.,

concur.

(44 Wash. 274)

ANDERSON et ux. v. SNOWDEN et ux.
(Supreme Court of Washington. Nov. 5, 1906.)
TENANCY IN COMMON-MUTUAL RIGHTS AND
DUTIES-CONTRIBUTION.

Plaintiff and defendant contracted to pur chase lands, and in order to complete the purchase caused the lands to be conveyed to parties who advanced the purchase price; it being understood between plaintiff and defendant and such parties that the lands should be reconveyed to plaintiff on repayment of the advances, and it being agreed between plaintiff and defendant that each should have an equal share in the lands, and each contribute one-half to the moneys paid or to be paid. Subsequently, plaintiff notified defendant that, in case he did not meet his portion of the amount necessary to complete the payment of the advances, plaintiff would make the payment, and refuse to recognize any

RUDKIN, J. This is an action to quiet title. The material fact occurring prior to the 5th day of December, 1904, is recited and

date prepared by the plaintiff James J. Anderson and signed by him and the defendant C. A. Snowden. The memorandum is as follows: "This memorandum witnesseth: That heretofore in the month of September, 1904, the undersigned entered into three contracts of purchase of thirty-two acres of land, being all of the N. E. quarter of S. E. quarter, section two, township 20 north, range 3 east, of W. M., excepting a strip of eight acres off the east side of said forty-acre tract belonging to James Alexander, from James Brewer, David Brewer, and Louisa Jackson; the whole purchase price of said thirty-two acres to be $4,800. That towards the purchase price of said lands the undersigned, C. A. Snowden, furnished the sum of two hundred dollars in cash, and has further paid the sum of seven dollars as interest upon one of the notes hereinafter mentioned. That the undersigned, James J. Anderson, has paid towards the purchase price of said lands the sum of one hundred dollars in cash, and has further paid on account of said lands the following sums: For abstract of title, $12.50; for surveying, $6; for recording contracts and deeds, $6.50; for interest on notes hereinafter mentioned, $19. That the undersigned have borrowed from the Pacific National Bank $650, evidenced by two notes, one being for $350 and one being for $300, the proceeds of which notes were paid on account of said lands. That in order to complete the purchase of said lands the undersigned obtained from E. E. Cushman the sum of $1,450, and as security for same had a portion of said lands deeded to said E. E. Cushman, taking back from said Cushman a contract for the reconveyance of said portion of said lands upon payment to him of $1,812.50; and also obtained from George P. Wright and Mrs. Mary Johnson the sum of $2,400, and had a portion of said lands deeded to said Mrs. Johnson and said

George P. Wright as security for same, taking back from said Mrs. Johnson and Geo. P. Wright a contract for reconveyance of said lands on payment to them of $3,000. That the undersigned, C. A. Snowden and James J. Anderson, have each an equal share in the contracts for reconveyance of said lands by said Cushman, Wright, and Johnson, subject to the contribution and payment by each of one-half of all moneys heretofore paid or to be paid on account of the purchase of said lands: the intention being that they shall each bear an equal share of the sums above mentioned as having been paid out, and an equal share of amounts to be paid in satisfaction of said notes when same are to be paid, the various sums so paid out to be adjusted between them that each shall bear an equal part of the same in the aggregate. That the said contracts of reconveyance have been made in the name of James J. Anderson for convenience, this memorandum being made to evidence the fact that said C. A. Snowden has an equal share in same on the conditions above stated. Dated, December 5th, 1904. Made in duplicate. Jas. J. Anderson. C. A. Snowden."

Some time thereafter and prior to the 1st day of September, 1905, Anderson paid to the Pacific National Bank the two promissory notes referred to in the memorandum, and

Mr.

on the latter date served on the defendant Snowden the following written notice: "Tacoma. Washington, September 1st, 1905. C. A. Snowden-Dear Sir: Referring to a certain written memorandum or agreement signed by you and myself, of date December 5th, 1904, with regard to a certain option or contract with George P. Wright and Mrs. Mary Johnson, and also with regard to a similar contract with E. E. Cushman, I write this to notify you that the time limit under the contract with George P. Wright and Mrs. Mary Johnson expires to-day, September 1st, 1905; and to further notify you that the amount necessary to be paid by you in order to protect any right or interest that you may have under or in said contract. is the sum

of sixteen hundred and ninety dollars ($1,690), which said sum you are hereby notified to contribute towards the payment the payment to said George P. Wright and Mrs. Mary Johnson, according to said contract with them, on this day; and in case of your failure to contribute said sum on this day for said purpose, any and all right or interest that you may have in or to said contract will be at once forfeited. Further referring to contract with E. E. Cushman mentioned in said agreement between you and myself, I notify you that the time limit for the performance of said contract with Mr. Cushman has been extended to and including October 1st. 1905; and further, that the amount necessary to be paid by you on or before that date, in order to protect any right or interest that you may have in or to said contract with Mr. Cushman, is the sum of ten hundred and thirty-six and 25/100 dol

lars ($1,036.25); and in case of your failure to contribute said sum towards the payment to said Cushman on or before October 1st, 1905, according to the terms of said contract, all right or interest that you may have in or to same will at once be forfeited. You are further notified that in case of your failure to meet your portion of the amount necessary to complete the payments under the said option contracts, or either of them, as above set forth, and in case I shall elect to and do, at my own cost and expense, make said payments, or either of them, I shall then refuse to recognize any claim that you or any one claiming through you may make under and by virtue of said agreement between you and myself as to the land so purchased by me. This notice is given in order to give you every opportunity to protect any rights that you may have in the matters referred to should you see fit to do so. Yours truly, Jas. J. Anderson." Snowden failed to comply with the requirements of the notice, and thereupon Anderson paid the several amounts due Cushman and Wright and Johnson, and took from them conveyances of the property referred to in the memorandum. Since the service of this notice and the payments to Cushman, Wright, and Johnson, Anderson has refused to recognize Snowden as having any interest in the property, and on November 15, 1905, brought the present action to quiet title.

On the foregoing facts the plaintiffs conand all interests they may have had in the tend that the defendants have forfeited any property by failure to pay their portion of the purchase price. The defendants, on the other hand, have filed a .cross-complaint, and ask that they be declared the owners of an undivided one-half interest in the property, subject to the payment of their portion of the purchase price. The court below found the facts substantially as above set forth, and dismissed the action, without granting any relief to either party. From this judgment both parties have appealed, and will hereafter be referred to as designated in the court below.

The plaintiffs contend, if we understand them correctly, that the relationship existing between themselves and the defendants was that of vendors and purchasers, and that by failure to pay the purchase price on demand the defendants forfeited all rights under their contract. If their premise is correct, the conclusion might follow, but we think this is a mistaken idea as to the relationship created and existing between the parties. There is no more reason for holding that the defendants acquired their rights by purchase from the plaintiffs than for holding that the plaintiffs acquired their rights by purchase from the defendants. Under the testimony, the findings of the court, and more especially the written memorandum prepared by one of the plaintiffs, the parties to this action were joint

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 common 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. IIe 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

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 Washington. 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, $$ 94-96.]

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

Action by John R. Foster and another From a judgagainst H. C. Taylor and wife. ment in favor of plaintiffs, defendants appeal. Affirmed.

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

DUNBAR, 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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