I am not at all satisfied with the disposition by the Department decision upon the question of the right of the city to foreclose being barred by § 162, Rem. Comp. Stat. [P.C. § 8167], which reads:
"Actions to set aside or cancel the deed of any county treasurer issued after and upon the sale of *Page 235 lands for general, state, county or municipal taxes, or for the recovery of lands sold for delinquent taxes, must be brought within three years from and after the date of the issuance of such treasurer's deed: Provided, that this section shall not apply to actions not otherwise barred on deeds heretofore issued if the same be commenced within one year after the passage of this act."
By the allegations of the second amended complaint, the one here on review, it appears that the tax deed in question was issued on July 24, 1920. The original complaint in this action seems to have been filed in November, 1922, though as to that the record before us is not at all certain; nor are we advised as to whether or not Dearle and wife were named as defendants therein, that complaint not being before us. There is in the record as brought here a summons seemingly issued upon the filing of the original complaint. Dearle and wife are not named as defendants therein, unless they be included in the words "all other persons or parties unknown, claiming any right, title, estate, lien or interest in the real estate described therein." This summons was filed November 1, 1922. There seems to have been a first amended complaint filed in the action. As to when that occurred, this record does not advise us; that complaint not being brought here, we are not advised as to whether or not Dearle and wife were named therein as defendants. There is in the record brought here proof of service of summons by publication upon Dearle and wife and certain other defendants as being made in January and February, 1924; that summons seemingly having been issued upon the first amended complaint. So far, therefore, we are not certainly advised when the action was commenced against Dearle and wife, having in mind that the filing of a complaint against Dearle and wife would be the commencement of the action against them. *Page 236
We note these facts to show how we would be groping in the dark to find the time of the commencement of this action as against Dearle and wife should we look in the record before us, beyond what appears upon the face of the second amended complaint, the only complaint before us and the one to which Dearle and wife have demurred upon the ground, among others, "that the action as to or against E.W. Dearle and wife has not been commenced within the time limited by law." This second amended complaint was served upon counsel for Dearle and wife and filed in the action on November 17, 1924, to which they responded by serving and filing their demurrer on March 22, 1924. Nothing appears upon the face of the second amended complaint, even though it be read in the light of other portions of the record before us, telling us when this action was commenced as against Dearle and wife.
My first objection to that portion of the Department's decision touching the question of the city's right of foreclosure being barred by the provisions of § 162 is, that this record does not furnish any fact basis for deciding this question at this time; that is, it does not appear upon the face of the second amended complaint, even though read in the light of other portions of the record before us, that the action was not commenced as against Dearle and wife within three years following the issuance of the tax deed upon which their claim of title rests. Therefore, I think that portion of the Department's decision ought to be expunged and the question of the action being barred under § 162 left undecided by us at this time. This would leave the question of the action being barred open to be yet raised in some appropriate manner.
Now, assuming, for the sake of argument, that three years elapsed after the issuance of the tax deed upon which the claim of title of Dearle and wife rests, prior *Page 237 to the commencement of this action against them, as they contend and the Department decision seems to assume, my second objection to that portion of the Department decision is that it erroneously announces the law. This court has repeatedly given full force and effect to the limitation provision of § 162, holding that such a tax deed three years old becomes unassailable, even though the irregularities attending the foreclosure proceedings upon which it rests amount to jurisdictional defects. In Huber v. Brown,57 Wash. 654, 107 P. 850, Judge Gose, speaking for the court touching the effect of § 162, that action being to vacate a tax foreclosure judgment and a deed issued in pursuance thereof, said:
"The point is made that the published summons and the affidavit upon which it is based are so defective that the court did not acquire jurisdiction, and that the judgment is therefore void, and that a tax deed based upon a void judgment is not within the protection of the statute. This is no longer an open question in this state. A like question was made in Hamilton v.Witner, 50 Wash. 689, 97 P. 1084, 126 Am. St. 921, and inLara v. Sandell, 52 Wash. 53, 100 P. 166. In the Lara case we said:
"`Whatever the rule may be in other jurisdictions, it is firmly established in this state that a void tax deed may constitute a sufficient basis for the running of the statute of limitations.'
"In these cases the court was considering the seven-year statute of limitations, but we do not conceive that a different principle should obtain in applying the provisions of the act of 1907, which is special to tax deeds and general in its terms. Its purpose was to foreclose investigation as to the validity of the proceedings leading up to the judgment unless challenged within the time limited by the act. The precise question was raised inCordiner v. Dear, 55 Wash. 479, 104 P. 780. Whilst this question was not discussed in the opinion, it was assumed that the law was settled in this jurisdiction *Page 238 adversely to the appellant's contention. The act of 1907 would serve no purpose if limited to deeds executed on sales regularly made upon valid judgments only. Such deeds need no legislative aid."
The act of 1907 there mentioned is § 162 above quoted, that being the whole of the act. Laws of 1907, p. 398. In Baylis v.Kerrick, 64 Wash. 410, 116 P. 1082, Judge Crow, speaking for the court touching the rights and duties of those claiming an interest in taxed property, said:
"They knew the law, and must have been aware of the fact that nonpayment for such a length of time would cause a loss of their land by tax foreclosure and sale. By their present contentions they seek to avoid the effect of the statute of limitations by questioning the validity of the tax judgment. This they cannot now do. If the judgment was valid and the tax deed was regular, there would be no need of the statute, which was enacted for the manifest purpose of securing prompt action by parties wishing to set aside or cancel tax deeds."
Among our later decisions steadfastly adhering to this view of the effect of § 162, we note: Fleming v. Stearns, 66 Wash. 655,120 P. 522; Savage v. Ash, 86 Wash. 43, 149 P. 325; andPorter v. Burkley, 112 Wash. 282, 191 P. 799.
To avoid the effect of these repeated holdings it is argued, and the Department decision holds in substance, that this is not an action to set aside or cancel the tax deed upon which the title of Dearle and wife rests. I cannot agree with this view of this action. To my mind, it is, in substance, plainly such an action, though it may not seem to be so in form.
Let it be remembered that whatever title Dearle and wife possess is a paramount title created as by a direct grant from the state, as all general tax titles are when rested upon general tax foreclosure by counties; that *Page 239 is, a title which completely extinguishes all interests legal, equitable or lienable, in, to or upon the property. This has been so many times held by this court that a mere citation of some of our decisions so announcing the law is sufficient here.Gustaveson v. Dwyer, 78 Wash. 336, 139 P. 194; Sparks v.Standard Lumber Co., 92 Wash. 584, 159 P. 812; MarylandRealty Co. v. Tacoma, 121 Wash. 230, 209 P. 1; Collins v.Spokane, 123 Wash. 156, 212 P. 150.
I concede that this paramount title is subject to be defeated within the three-year limitation prescribed by § 162 at the suit of one having an interest in the property prior to the expiration of that period, who is able to show such irregularities in the foreclosure proceedings as entitled him to have the foreclosure judgment and the deed set aside; and I concede, for present purposes, that within that period such irregularities as the Department decision holds available to the city were sufficient to defeat the title of Dearle and wife. But I am nevertheless strongly of the opinion that, upon the expiration of that three-year period, subject to some possible exceptions with which we are not here concerned, the paramount title evidenced by a tax deed rested upon a general county tax foreclosure becomes absolutely unassailable. In other words, after the expiration of that period, defects in the tax foreclosure proceedings, though jurisdictional, are no longer available as grounds for setting aside the tax deed. Let us remember in this connection that the tax deed upon which the title of Dearle and wife rests evidences a title acquired by the county, and in turn by them, after the acquiring by the city of the local assessment lien it seeks to foreclose. Notwithstanding this action is in form a foreclosure action, it manifestly is also, in legal effect, an action to set aside the foreclosure *Page 240 and the tax deed issued in pursuance thereof. Plainly, the city is seeking to entirely avoid the effect of the tax foreclosure and deed and to sell all of the rights of Dearle and wife acquired thereby, in satisfaction of the city's claimed local assessment lien. The only real success which can come to the city in this action, which can be of any avail to it, is the decreeing the tax title as not being a paramount title. This, to my mind, makes the action in legal effect one to set aside the tax deed.
The allegations of the city's second amended complaint is, among other things, that the tax foreclosure proceedings and deed issued in pursuance thereof "were wholly void and ineffectual for any purposes whatever," followed by statement of facts disclosing defects in the tax foreclosure proceedings; and the prayer is, among other things, "that the said purported tax foreclosures and tax sales conducted or caused to be made by the defendant Snohomish county as hereinbefore specifically described, be adjudged and decreed to be null and void, and that the lien of local improvement district No. 250 be established as a first and paramount lien upon all the property described therein." Our decision in Porter v. Burkley, 112 Wash. 282, 191 P. 799, was not in form an action to set aside a tax deed. That case was in form an ordinary mortgage foreclosure; yet foreclosure was denied because of the after-acquiring by one of the defendants of a paramount tax title, perfected and rendered unassailable by the three-year limitation prescribed by § 162. It is true the question of whether or not that was, in legal effect, an action to set aside a tax foreclosure and the deed issued thereunder was not specifically raised or discussed in that case; but it seems to me that that action was, as this is, plainly, in legal effect, an action *Page 241 to set aside a tax foreclosure and the deed issued thereunder. There, manifestly as here, the plaintiff could not succeed in its attempted foreclosure because of the after-acquired paramount, and by the lapse of time under § 162 unassailable, tax title. It is the substance and not the form of the action which becomes determinative of its nature.
The seeming holding of the Department decision that it is the ten-year limitation relating to the commencement of actions for the foreclosure of local assessment liens which is here controlling, rather than the three-year limitation prescribed by § 162, it seems to me, is illogical. It is true that the city has ten years within which to commence its action to foreclose its local assessment liens; but that, to my mind, does not in the least argue that its lien right may not be cut off in the meantime by a decree of the court rendered in a general tax foreclosure proceeding by the county, out of which a new and paramount title is created upon the issuance of a tax deed, which paramount title becomes unassailable upon the expiration of the three-year limitation prescribed by § 162. In other words, the fact that the city has ten years within which to bring an action to foreclose its local assessment lien, surely does not mean that it cannot in the meantime be cut off by the foreclosure of a superior general tax lien. That is what has been done by this general tax foreclosure and the tax deed issued in pursuance thereof, and the expiration of the three-year limitation under § 162 has absolutely cured all defects in that foreclosure, even though they be jurisdictional.
My conclusion, therefore, is, first, that there is no basis in fact warranting this court in now entertaining the question of the effect of the three-year limitation prescribed by § 162, and that the portion of the Department decision touching that subject should be expunged *Page 242 and that question left open in this case; and second, that in so far as that portion of the decision holds that this is not in legal effect an action to set aside a tax foreclosure and tax deed, it announces an erroneous view of the law. If the decision of the Department is to prevail upon the assumption that the three-year period of limitation prescribed by § 162 expired before the commencement of this action, then it should be overruled, and the demurrer of Dearle and wife upon the ground that the action was not commenced within the time prescribed by law as to them should be sustained.
As to the view of the majority that tender to Dearle and wife of the amount of unpaid taxes for which the tax foreclosure was had should have been made as a prerequisite to the city's right to commence this action, I yield to the opinion of my brethren; but I am of the opinion that the question of the trial court by its decree finally requiring such payment as a condition precedent to the local assessment foreclosure, should such foreclosure be ultimately awarded, should be left open for future determination.