Docket No. 600
Decided: Friday, March 16th, 1894
Opinion: 7 Wash. 631 (1894)
Court: Dunbar1 Court (1893-1894)
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Undetermined votes indicate that the opinion(s) have not been evaluated yet.
BAER v. CHOIR, 7 Wash. 631; 36 P. 286 (1894).
SUPREME COURT OF WASHINGTON March 16, 1894, Decided$47 March 16, 1894, Decided $75 7 Wash. 631 at 639.$80Original Opinion of February 14, 1893, Reported at: 7 Wash. 631.
Judge(s) STILES, J. DUNBAR, C. J., and HOYT, SCOTT and ANDERS, JJ., concur.
Opinion By: STILES ON RE-HEARING. The opinion on the re-hearing was delivered March 16, 1894, by STILES, J.--Deeming that there was, perhaps, some conflict between the decision in this case and that of Ward v.
Huggins, ante, p. 617, we granted re-hearings in both cases, and both are now ready for final disposition. We adhere to the decision made in this case at the former hearing; but there are matters raised in the later briefs which require notice.
1. We were in error when we stated in the former decision that the record showed that the lots had been assessed to Mrs. Bonnell for the years 1873-4, and that she did not convey until 1889. All that appeared from the record was, that the lots were conveyed to her in 1870, and that she conveyed to the appellant's grantor in 1889. The legal presumption is (and it is so conceded to be by counsel), that she did not convey to any other person in the interim; therefore she did not convey to Knight, and therefore he was not the person to whom the property was assessable in 1875. On the other hand two presumptions are claimed for the position that Knight was the owner: (1) That an officer has performed his duty in accordance with law; (2) the presumption declared by the statute to the effect that the deed should be presumptive evidence of the regularity of all former proceedings.
But in tax proceedings the presumption in favor of official acts did not prevail; for before the statute the holder of a tax deed was bound to prove the regularity of every essential step to sustain his title. As to the statutory presumption, it is clear that it was enacted merely for the purpose of changing the burden of proof. Before it the purchaser must prove a perfect compliance with the tax laws; but under it the owner must show a substantial defect in the proceedings before he would be entitled to have the deed set aside. Having shown facts which raised the legal presumption that Mrs. Bonnell was the owner from 1870 to 1889, we think the presumption of the statute was neutralized, and the burden of showing that Knight was in fact the owner rested upon the respondent. And this ought to be the law of the case, for if we suppose Mrs. Bonnell not to be alive at the time of the trial, it would, in all probability, be impossible to prove that she did not convey to Knight, or to some one who conveyed to him, between 1870 and 1875; but, on the other hand, if she did convey, a resort to the records of the county would almost certainly disclose the fact and settle the matter beyond controversy.
2. Counsel claim to have been misunderstood as to their concession on the subject of the three-year statute. The former opinion said: "The assessment being void as against the true owner, it is conceded by respondent that there was no sale, and that the deed was void also. For the reason that there was no sale, it is conceded that the special three-year limitation found in § 2939 of the Code of 1881 has no application." The language of the brief was: "It is also to be observed that our statute applies the limitation only to cases where the land has been 'sold for taxes.' If there has, in fact, been no legal assessment or levy, there can, in law, be no tax. So, likewise, if there has been no sale, the statute has no application." Having held the assessment to be absolutely void, we take it that there was no assessment, no tax and no sale, although there may have been an abortive attempt to accomplish each of these. What has just been said, however, must be taken to apply only to the particular revenue act of 1871. In this connection it is called to our attention that one of the cases cited in support of the proposition that the assessment was void was Murtaugh v. Railroad Co., 3 N.Y.S. 483. The proper citation was Zink v. McManus, Id.
487. Concerning the merits of the question as to the three-year statute of 1881, in Ward v. Huggins, supra, we have held that it had no application to tax deeds issued in pursuance of sales made under prior revenue laws. It is maintained, however, that as the same provision occurred in the revenue law of 1869 (Laws, p. 176), and as the repealing clause of the act of 1871 only covered all acts and parts of acts in conflict with the new act, the limitation section remained the law of the territory, because it did not conflict with anything contained in the new law. Each of these acts was entitled "An act to provide for the assessing and collecting county and territorial revenue;" each covered the same subject matter; and it was evidently the legislative intention that the entire act of 1869, as a revenue measure, should cease to have any existence. If all the points of difference in an old revenue law which were not clearly in conflict with the new act should be construed to remain in force, the problems of taxation would be multiplied beyond human understanding. To have to understand and obey one law at a time is as much as the average citizen is equal to.
3. Chapter 22, Acts of 1887-8, p. 43, is invoked. If the tax deed in question was void, and if the act mentioned was intended to apply retrospectively so as to affect such cases as this, then the act is open to the objection that the effect of it would be to take property without any process of law; and therefore it must be obnoxious to both the federal and the state constitutions.
Ordered as before.
DUNBAR, C. J., and HOYT, SCOTT and ANDERS, JJ., concur.