I dissent. The NW 1/4 of the NE 1/4 of section 11, township 23 north, range 4 east, W.M., was platted into eight five-acre tracts, the plat being known as "E. Steinle's 40 Acre Tract." As shown on the plat, the five-acre tracts are in two east-west tiers of four tracts each. Each tract is shown as being 330 feet east and west and 660 *Page 566 feet north and south. Tract 8 is in the southwest corner of the plat.
The respondents had acquired title to the S 1/2 of tract 8, which, according to the plat, gave them a tract 330 feet by 330 feet. This is carried on the assessor's records as the south 330 feet of tract 8. The south line of the S 1/2 of tract 8 is also the south line of the NW 1/4 of the NE 1/4 of section 11 and the north line of the SW 1/4 of the NE 1/4 of the same section.
The SW 1/4 of the NE 1/4 had been divided into smaller tracts, and one of these was described as the N 1/5 of the W 1/2 of the west ten acres of the N 1/2 of the SW 1/4 of the NE 1/4. This is shown on the assessor's maps as tax lot 16, and, for the sake of brevity, that designation will be used hereafter.
Tax lot 16 is approximately 126 feet north and south and 330 feet east and west. Its north line is the north line of the SW 1/4 of the NE 1/4, which would be the south line of the NW 1/4 of the NE 1/4 and of the S 1/2 of tract 8.
The NW 1/4 of the NE 1/4, though platted by E. Steinle as though it were a standard government subdivision, is only 1260 feet north and south instead of 1320 feet, and, to get their full 330 feet north and south, the owners of the S 1/2 of tract 8 occupied and used approximately sixty feet of tax lot 16, which, as we have seen, is in the SW 1/4 of the NE 1/4. The use by the respondents and their predecessors in interest of that sixty-foot strip had continued for so long a period and was of such character as to have vested title in them by adverse possession.
Apparently, taxes were assessed and collected for many years, both on the S 1/2 of tract 8, or the south 330 feet of tract 8, and on tax lot 16. In 1932, the owner of tax lot 16 quit paying taxes thereon, and in 1941 there was a tax foreclosure and a sale to King county. The appellants bought tax lot 16 from King county in 1942.
It is conceded that a tax sale wipes out a title acquired by adverse possession, but the majority says: *Page 567
"Rem. Rev. Stat. § 11288, does make the treasurer's deed `prima facie' evidence of the validity of the tax-foreclosure judgment `except in cases where the tax has been paid, or the real property was not liable to the tax.' We think the tax on the 60 feet strip of land overlapping appellants' tract was paid. It is true that the payment was not made under an accurate description, but the error of all concerned was in the description only and not as to the actual land improved, occupied, and assessed."
It should be noted that the assessor's records show E. Steinle's 40 Acre Tract to be located in the NW 1/4 of the NE 1/4. The tax statements paid by the respondents covered the south 330 feet of tract 8, E. Steinle's 40 Acre Tract, and never purported to cover any part of the SW 1/4 of the NE 1/4. The sixty-foot strip in question is a part of the SW 1/4 of the NE 1/4 and was assessed and taxed as such. To say that the respondents ever paid any taxes on any property in the SW 1/4 of the NE 1/4 seems to me sheer sophistry, although I can agree that they believed they were paying taxes on this sixty-foot strip, and that they had reason so to believe.
As the majority says, Rem. Rev. Stat., § 11288, makes the deed executed by the county treasurer prima facie evidence of the validity of the tax-foreclosure judgment, except in cases where the tax has been paid or the real property was not liable to the tax. We have, to the two exceptions provided by the legislature, already added a third — frustration of the taxpayer in the payment of his taxes, by a public officer. Pierce County v.Newbegin, 27 Wash. 2d 451, 178 P.2d 742; Nalley v. Hanson,11 Wash. 2d 76, 118 P.2d 435; Bullock v. Wallace, 47 Wash. 690,92 P. 675. We now, whether we admit it or not, add a fourth exception, i.e., where property on which the tax is foreclosed is immediately adjacent to that on which a taxpayer has paid taxes and which the taxpayer believes and has reason to believe is included in the description in his tax statement.
By this decision, we not only add a new exception to *Page 568 those enumerated in Rem. Rev. Stat., § 11288, but write a new chapter on "How Secure Is Your Tax Foreclosure Title?" 23 Wash. L. Rev. 132.
June 29, 1949. Petition for rehearing denied.