Aberdeen herald. [volume] (Aberdeen, Chehalis County, W.T.) 1886-1917, 1905-03-06
TAX TITLE IS VOID
F. E. JONES LOSES VALUABLE LOT
BY DEFECTIVE SUMMONS.
He Held TreaSurer'S Deed TO Lot on
WiShkah Street, Which the Su-
periOr Court Held Valid, But the
Supreme Court of the State De-
CideS Otherwise.

The decision of the state supreme court
in the case OF Edward DoIan VS.. F. E.
Jones' which is printed in full below,
gives the lot on Wishkah street, next to
the Edison theater, to Dolan. nothwith.
standing the fact that Jones held tax
deed TO the property for several years.
The case for Dolan was managed from
the beginning by Attorney 4. II. Mckay,
assisted later by A. M. Abel. Attorney
Mckay insisted from the start that the
summons in the foreclosure proceedings
contained fatal defect. The superior
court decided against him and the case
was appealed. Now the supreme court
maintains the contention Of Mckay and
awards the lot to Dolan.
This decision does not. as many appear
to think, cast cloud on tax titles as q
whole, in fact those titles are the best
obtainable, if the proceedings in fore.
closure have been regular, for the reason
that it cures all defects that NAV have
existed in the title prior to its sale for
taxes. Following is the decision in full:
On the l4th day OF December. 1900,
the defendant, F. 4. Jones. commenced
an action in the Superior Court OF Che.
halls county, i'll this state, to foreclose a
delinquency certificate on the lots and
lands in controversy in this action.
There was no appearance by any person
in the foreclosure action. and the only
process served was the publication of a
summons citing the defendants ''to ap.
pear within sixty days after the service
OF this summons upon you, exclusive OF
the dav of service, and defend this action
or pay the amount DUE" etc. The sum.
mons was signed by the plaintiffs at
torney, and beneath his signature was
"date of first publication, Dec. l4th,
1900" On the 2lst day of March, 1901,
decree OF foreclosure was entered by
default. directing sale OF the property
described in the delinquency certificate.
On the 9Th day Of April, 1901, the prop.
erty was sold pursuant to said decree and
order OF sale and bid in by the plaintiff
in said action, who is one of the defend.
ants in this action. On the lth day OF
February, 1904, the plaintiff in this
action, who is the successor in interest
to the original owner Of the property in
controversy, brought this action in the
court below, setting forth his title to the
property, the proceeding to foreclose the
delinquency certificate as above stated,
the fact that there was no appearance
therein and no service Of process, except
the publication of the summons above
specified, and asked that the tax pro
ceeding and tax deed be decreed null
and void, that he be permitted to redeem
from the tax sale, and that his title be
quieted. The plaintiff also rendered all
taxes and assessments which had been
paid by the defendant, Jones. Judg.
ment of dismissal was entered in the
court below, from which this appeal is
taken.
The first question raised by the re-
spondents is that this is an action to
quiet title, and in as much as the ap.
pellant is not in possession and the lots
are not vacant or unOccupied, the court
had no Jurisdiction and the action could
not be maintained. We do not think
this is an action to quiet title as claimed
by respondents. The reason why per-
son cannot maintain an action to quiet
title to lands in the possession OF another
is that the party out of possession has a
full and complete remedy in an action at
law to recover possession. The appel.
liant here had no such remedy. In an
action at law to recover possession he
would be concluded by the tax judgment
and sale which he could not attack COL
laterally. The only remedy open to ap-
pellant was either to move directly in
the tax foreclosure case to vacate the
tax judgment or to bring an independent
suit in equity for that purpose. He
chose the latter course, and we hold that
he is properly before the court.
The second objection urged by the
respondents is that there is nothing in
the record to overcome the finding OF the
court in the tax foreclosure case, that
summons and notice has been duly
served in this proceeding as required by
the statutes of the state, and such stat
ute complied with in all respects per-
tanning thereto" From the affidavit for
publication of summons, the return OF
the sheriff, the proof of publication, the
fact that the principal defendant to
whom the summons was directed died
some years before the service, and from
the testimony OF the respondent, Jones,
himself it clearly and satisfactorily APP
pears that no service was made except
bv the publication of the summons here
inbeiore described and the validity OF the
tax judgment must depend on the sufii-
cheney of the service. In Thompson VS..
Robbins, 80 Wash. l49, the form OF the
summons was "You are hereby sum-
moned to appear within sixty days after
the service of this summons upon you,
exclusive of the day of service, and de-
fend this action or pay the amount due, "
etc. In that case as in this the sum.
mons was subscribed by the plaintiff S
attorney. and underneath his signature
was 'tirst publication Feb. %, 1901"
From the foregoing statement it will be
seen that the two summonses are ldenti.-
cal in every respect, and each was issued
of 1897, page 1872, Sec. SO. subd. 8. In
the case just cited this court says: 1.-The