The fundamental weakness or vice, if I may be permitted to use that expression, of the opinion of the majority lies, I believe, in the assumption that the new tax title is initiated by the general tax sale and that it then becomes paramount and supreme. If I correctly read our statutes, this cannot be. By Rem. Comp. Stat., § 9393, and by the amendment thereto, Laws of 1925, Ex. Sess., p. 291; Rem. 1927 Sup., § 9393, it is plainly and clearly provided that, when the county becomes a purchaser at such sale, it must hold the property for the benefit of the county, and for the city, if there be special assessment liens thereon; that the city may redeem in the manner provided in the 1925 act, and if there be no such redemption, the county, upon making a resale, shall, after satisfying its own claims from the proceeds of such sale, pay the overplus, or so much thereof as be necessary, to the city "to discharge all local assessment liens upon such property."
These provisions of the statute clearly establish two things: First, that the local assessment liens are not foreclosed in the foreclosure proceedings and are not discharged by the general tax sale; and, second, that the county, by buying at the general tax sale, becomes a trustee for the purposes indicated. *Page 678
Of course, if the county, having exercised the diligence and good faith always required of a trustee, can realize by resale an amount less than, or only enough to pay, the general tax liens, then a new title is initiated in the purchaser at the resale, freed from all prior liens of both the general taxes and special assessments; but not until such resale is so consummated is the lien of the special assessments divested. Search our statutes from end to end and there will be found no provision for the foreclosure or discharge of the lien of local assessments, save only by their payment in full, or by the county alone on resale in the manner just indicated. We have no power to legislate upon the subject; and had we the power, it would be unjust to exercise it for the purpose of destroying the special assessment lien.
With this premise clearly established, can it be held that a purchaser at a general tax sale can defeat the beneficent purpose of the statute, and by bidding and paying the amount of the general taxes only thereby absolutely cut off the liens of the local assessments? As was said in Maryland Realty Co. v.Tacoma, 121 Wash. 230, 209 P. 1:
"It was the legislative intent to preserve the lien of the local assessment where it could be done without sacrifice to the county and state. If private investors would take the property, they must pay both the delinquent general tax and the local assessments, but if the property be of such small value as that the county must buy it in, then the superiority of the lien for general taxes must be asserted, even to the point of destroying the lien of the local assessment. . . .
"Where the county forecloses a certificate of delinquency on account of general taxes and buys in at the sale and later sells the property to a private individual, it initiates and creates a new title to the property, which the private individual takes free and clear of any kind or character of prior liens." *Page 679
Since the individual purchaser is not accorded the privilege of making a resale and applying the proceeds as the county may do, there remains to him only one means of discharging the lien of local assessments, and that is by payment in full.
Under the statute as construed in Maryland Realty Co. v.Tacoma, supra, Everett v. Morgan, 133 Wash. 225, 233 P. 317, and State ex rel. Spokane v. DeGraff, 143 Wash. 326,255 P. 371, the judgment appealed from is right and should be affirmed.
PARKER, J., concurs with TOLMAN, J.