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lien. This being true, the lien for unpaid taxes assessed in 1895 and prior years exists in favor of the state until paid. If this were an action to enjoin the sale of the land for taxes, or to enjoin the collection of a tax, or an action at law for the recovery of property sold for taxes, the statute, at section 5678, 2 Ballinger's Ann. Codes & St., provides that the person bringing the action shall first pay or tender the amount of taxes justly due and unpaid, before he can maintain the action. While this action is not one to re cover the property, it is an action to remove a cloud; and it seems, upon principle, that as just a rule should prevail in equity as prevails at law. There is no claim here that the taxes assessed and paid by defendants in 1894 and 1895 were not justly and equitably chargeable upon the lands, nor is there any claim that the owner has paid them. he now seeks in equity to remove whatever cloud or lien there may be upon his land, simply because the time for defendants to acquire the title thereto has gone by. It seems that plaintiff ought not to be permitted to maintain his action in equity to remove an existing lien for taxes until he has done equity himself. The language of Justice Brewer in the case of Parks v. Watson (C. C.) 20 Fed. 764, is particularly applicable to the case at bar. It is there said: "This is an equitable action, and in it each party must be required to do equity. The court will inquire not simply as to the legal, but also as to the equitable, rights. Every owner of property owes the duty of contributing in taxes his just proportion of the expenses of maintaining the government. The complainant in this case neglected that duty, and the defendants discharged it for him. The state has a lien on the land for all taxes until they are paid. Comp. St. Neb. p. 1001, § 138. When paid by other than the owner of the land, the state must be considered as transferring its lien to such party, and the only way in which equity should relieve the owner from the burden of such lien is by payment. It will not do to say that if, in consequence of the defects in the proceedings, the lien was in no condition to be enforced by the state, the purchaser at the tax sale took nothing, because it is within the undoubted power of the state, if tax proceedings are defective, to renew them again and again, and until they result in the payment of the tax. If one, without stopping to question the regularity of the proceedings, comes forward and pays the tax, he ought to be entitled not merely to the benefit of the proceedings then already had, but also to the full benefit of all the state's rights. The inquiry, therefore, is not whether the taxes are legal in the sense that the proceedings are all regular and correct, and such that a full title to the land could be obtained by carrying them on to completion, but whether they are legal in the sense that they are just and equitable impositions upon the land. In other words, was the land subject to taxa69 P.-48

tion? Was the tax authorized by law and imposed by the proper tribunal? Were the proceedings so far in substantial compliance with the statute that the court can see that equitably the lot owner should have paid the taxes, that they were simply his just contribution to the support of the government? If so, before the court will relieve him from the cloud of a tax deed, it should require payment by him of such taxes and interest." See, also, Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846.

For the reasons above given, we are of the opinion that, before the plaintiff can maintain this action, he must pay or tender the amount of the taxes paid by defendants, with legal interest from the time of payment. The judgment of the lower court will therefore be affirmed.

REAVIS, C. J., and ANDERS, HADLEY, FULLERTON, and WHITE, JJ., concur.

(29 Wash. 188)

STACK v. NOLTE et al. (Supreme Court of Washington. July 19, 1902.)

FRAUD-DEED-CANCELLATION-STATEMENTS

OF FACT-OPINIONS EVIDENCE.

1. In an action to set aside a quitclaim deed as procured by fraud, it appeared, according to plaintiff's testimony, that an attorney residing near plaintiff's land visited plaintiff, and falsely informed him that the land had been sold for taxes; and the attorney testified that he showed plaintiff a summons in proceedings to foreclose a delinquency certificate. The attorney stated the land to be worth much less than its true value, and offered to purchase for a certain sum if plaintiff would act at once. Held, that the representations as to value were not expressions of opinion, but statements of fact.

2. A contention that the landowner was not entitled to rescind, because of the rule that mere inadequacy of price does not establish fraud, was of no avail; it being apparent that the representations as to value had been made with intent to secure the property.

3. The rule that one cannot have relief from fraud, when he had not used means at his hands to learn the truth, was of no avail to defendant: plaintiff having been at a disadvantage in the transaction.

4. In an action to set aside a quitclaim deed as secured by fraud, on defendant's representation that the land had been sold for taxes under foreclosure proceedings under delinquency certificate held by him, the theory was that there had been a conspiracy to secure the land from the owner by fraud. Held that, in support of such theory, testimony of those who had owned the delinquency certificates on the land, as to false representations made to them by plaintiff on purchasing their certificates, was admissible.

Appeal from superior court, Skagit county; George A. Joiner, Judge.

Action by Charles J. Stack against G. Nolte and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Kerr & McCord, for appellants. Jas. F. McElroy and Million & Houser, for respondent.

2. See Deeds, vol. 16, Cent. Dig. §§ 173, 179.

HADLEY, J. This action was brought by respondent against appellants to compel the surrender of a certain quitclaim deed, and for other relief as hereinafter indicated. The complaint alleges, substantially, that respondent was at all times mentioned the owner of certain real estate in Skagit county, Wash.; that on the 10th day of November, 1899, there were delinquent and unpaid taxes owing upon said land for the years from 1891 to 1896, inclusive, in the sum of $162.26; that at the same time there were also due upon the same land taxes for the years from 1897 to 1899, inclusive, in the sum of $69.57; that on said date the appellants Smith and McDonald procured from the treasurer of said county a certificate of delinquency upon said land for the taxes due for the year 1896 and prior years, and at the same time they paid to the treasurer the subsequent taxes above mentioned; that on the 9th day of February, 1901, appellant G. Nolte, at the instigation of appellant Eaton, commenced an action to foreclose said certificate of delinquency, and alleged in the application for the judgment of foreclosure that on the 22d day of December, 1900, said Smith and McDonald assigned to said Eaton all their interest in said certificate, and that on the 29th day of January, 1901, said Eaton assigned and transferred the same to said G. Nolte; that said action is still pending; that said Eaton and Nolte did on or about the 22d day of December, 1900, enter into a conspiracy for the purpose of defrauding respondent out of said land, and in pursuance thereof said Eaton approached said Smith and McDonald and represented that he and said Nolte were the agents of respondent, and were desirous, in behalf of respondent. of paying said taxes, and said Smith and McDonald, relying upon and believing said representations, accepted the money due on said certificate of delinquency, and surrendered it to said Eaton and Nolte, who thereupon pretended and claimed that it had been assigned to them, and caused said action to be brought to foreclose the same; that in pursuance of said conspiracy said Eaton, representing said Nolte, went to the home of respondent, at Akron, in the state of Ohio, and then and there, on the 4th day of May, 1901, well knowing that respondent was in entire ignorance of any action having been taken for the purpose of acquiring tax title to said property, did pretend and represent to respondent that said land had been sold for taxes, and that respondent no longer had any valid or subsisting interest therein; that said representations were false, and were well known by said Eaton to be false at the time they were made, and were made by him for the purpose of inducing respondent to convey said land for a sum much less than its real value; that respondent, not having been a resident of the state of Washington for several years, and being ignorant of the laws of said state and the procedure

necessary to procure a tax title to the prop erty, was led to believe said representations, and did believe and rely upon the representations that he had no further subsisting interest in said land; that said Eaton represented at the said time that the only purpose for which he desired a conveyance was to clear up the title, assuring respondent that he (respondent) had no substantial right thereto, and offering to pay him $500 for a quitclaim to the property; that respondent, in ignorance of his true rights, and in ignorance of the facts, and being induced by said false statements, did execute and deliver to said Eaton a quitclaim deed to said property, conveying the same to said G. Nolte; that at the time of making said representations said property was, and it is now, of the value of $2,500; all of which facts were well known to said Eaton and Nolte, but were unknown to respondent, and respondent relied upon said Eaton's representation that said property was of no greater value than $500. It is further alleged that said Nolte and Eaton threaten to file said deed with the auditor of said Skagit county, thus placing the record title of the property in said Nolte, and that, if they be permitted to do so, a cloud will thereby be placed upon respondent's title, and he will suffer irreparable damage in consequence thereof; that respondent now tenders into court the amount of said taxes, together with all interest, penalties, and costs, and also tenders the said sum of $500. A restraining order is prayed, prohibiting appellants from taking any further steps in said foreclosure proceedings, from placing said deed of record, or from conveying the land to any person pending this action. It is further prayed that upon the trial of the cause upon its merits the court shall compel the surrender of said deed into court for cancellation, and that the court shall adjudge to whom the taxes are payable, and shall grant any other proper relief. The answer, in the main, consists of denials of the material averments of the complaint. The cause was tried by the court without a jury. The court found, in substance, as follows: That respondent acquired title to the land from the United States about the year 1891; that appellant G. Nolte is the owner and holder of tax certificates thereon for the years 1891 to 1899, inclusive, and that there is now due and owing him thereon, together with interest, the sum of $353.46; that on the 4th day of May, 1901, at Akron, in the state of Ohio, the appellants procured from respondent a quitclaim deed to said property, which deed is now in the possession of appellant Neal, as auditor of said Skagit county, and is held by him by virtue of a stipulation between the parties that he shall retain it subject to the final determination of this cause; that, for the purpose of procuring said deed, false representations and statements were made to respondent, upon which he relied, and was

thereby induced to execute and deliver the same in consideration of the sum of $500; that the property was at the time of the execution of the deed of the value of $1,600; that respondent announced at the time of the trial that he was ready and willing to deposit with the clerk of the court the said sum of $500, together with interest thereon from May 4, 1901, at the lawful rate, and to likewise deposit, for the benefit of the holder of said certificate for taxes, the full amount thereof; that, if said false statements and representations had not been made to respondent, he would not have executed and delivered said deed. Upon the foregoing facts the court concluded, as matters of law, that respondent is the absolute owner of the land, and that said deed is void; that appellants are entitled to have repaid the said sum of $500, with interest from the date respondent received it, and that they are also entitled to have paid them said sum of $353.46, taxes, and interest thereon; that, upon the payment of such sums forthwith into the registry of the court, a decree be entered directing the appellant Neal to surrender said deed to respondent; that appellants be enjoined from asserting any right or claim to said land, or any part thereof. Thereafter judgment was entered upon the foregoing, which recites that respondent has deposited with the clerk of the court the sum of $865,-the same being the amount directed to be paid for the use and benefit of appellants; and it is adjudged and decreed that the deed in the possession of appellant Neal be surrendered to respondent for cancellation, and that the appellants, and each of them, and all persons claiming through or under them, be forever enjoined from asserting any right or title to the land. From said judgment this appeal was taken. A number of distinct errors are assigned, but they are all grouped by counsel, in argument, under two general heads, as leading propositions involving all questions raised. The first of these is that the evidence is wholly insufficient to justify the findings of the court as to fraudulent representations on the part of appellants. In this connection the evidence shows that appellant Eaton was an attorney at law then residing in Seattle; that, as the employed attorney and agent of appellant E. L. Gaudette, he traveled from Seattle to Akron, in the state of Ohio, having learned that the latter city was respondent's place of residence; that he at once sought an interview with respondent at his place of business, and, after introducing himself, inquired of respondent if he ever owned some land in Skagit county, Wash. He was answered in the affirmative. Eaton himself testified that he then said to respondent that the land was about to be sold for taxes, and that he handed him a copy of the complaint and summons in the above-mentioned foreclosure proceedings, which showed that judgment would, or at least could, be taken with

in a few days; that he then offered respondent $250 for a quitclaim deed to the land, which was refused, and, after further negotiations, respondent agreed to accept $500 for such deed; that such deed was then made out,-the appellant G. Nolte being, at the request of Mr. Eaton, made grantee therein,--and the deed was placed with a bank in Akron, with instructions to deliver it to Eaton upon the receipt of $500 for respondent's use, directions for the payment of which were expected by telegram from a bank in Whatcom, Wash. Two days later such instructions were received, the money was paid to respondent, and the deed delivered to Eaton. What the real interest of appellant G. Nolte may have been, does not clearly appear. Appellant E. L. Gaudette seems to have furnished the purchase money, and also the expense money of said Eaton, but the deed was taken as aforesaid. Nolte was at least the apparent owner of the tax certificates, and the foreclosure proceedings were being prosecuted in his name. Respondent testified that Eaton told him the land had already been sold for taxes, and that he had no real interest left therein, but, in order to clear up the tax title, he would pay him $250 for a quitclaim deed; that the land was not worth to exceed $500, and that respondent must "do business" with him on that day, or he would never realize one cent from the land; that respondent had left the state of Washington in 1891, and did not know the value of the land under conditions as they existed at the time said Eaton came to him. It appears that the land is chiefly valuable for its timber. It was then situate between one and two miles from a railroad, and contained a quantity of valuable timber. Respondent further testified that he relied upon said Eaton's statements that the land was not worth to exceed $500, and that his interest had really been devested by tax procedure, and that the deed was desired only for the purpose of clearing up what is ordinarily called a "tax title"; that, but for such statements and representations, he would not have executed the deed. The witnesses varied in their valuation of the land; some placing it as high as $2,500, the amount alleged in the complaint. We think the court's finding of value at $1,600 is amply supported by the evidence. Respondent in some essential particulars is corroborated by other witnesses who were present at the time Eaton called upon him. The $500 paid respondent, together with the accumulated taxes, interest, and penalties, amounted to a few dollars more than half the value found by the court. Appellants invoke the principle that mere expressions of opinion as to value, even though erroneous, do not constitute such fraud as will afford ground for rescission of an executed contract; citing 2 Warv. Vend. p. 853. Reference to the above text discloses that the author states the rule as follows: If it was the

expression of a matter of opinion or of fact equally open to the inspection of both parties, and in regard to which neither could be presumed to trust the other, there is no need for equity to interfere or to grant relief on the ground of fraud." It is manifest that the land in question was not equally open to the inspection of both Eaton and respondent at the time the alleged representations as to value were made. They were then thousands of miles distant from the land. Eaton had just come from the vicinity of its location, was familiar with its surroundings, and knew its value. Respondent had not been upon the land or in its vicinity for more than 10 years. He was wholly uninformed as to its true market value, or as to the tax procedure for establishing tax titles in the state of Washington. To get such information required the expense and time for a trip over a long distance, or at least the delay occasioned by correspondence; and since respondent says he was told by Eaton that he must deal with him on that day, or never realize a cent for the land, the inducement to rely upon the statements and act at once was such as ordinary human nature is not apt to resist; and such representations, made under such circumstances, we think, become questions of fact, and not of opinion, and, if false, present a case of fraud. "Wherever a party states a matter which might otherwise be only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, and rely and act upon it as such, then the statement clearly becomes an affirmation of fact, within the meaning of the general rule, and may be a fraudulent misrepresentation. The statements which most frequently come within this branch of the rule are those concerning value. * * It is an essential requisite, both in equity and at law, that the representation, whatever be its form, must be made for the purpose and with the design of procuring the other party to act,—of inducing him to enter into the contract or engage in the transaction. It must therefore be, of necessity, preliminary to the actual conclusion of the transaction, and in the great majority of instances it is made during and forms a part of a negotiation between the parties, which terminates in the contract or other transaction." 2 Pom. Eq. Jur. §§ 878, 879. See, also, Baum v. Holton (Colo. App.) 36 Pac. 154; Whitney v. Richards (Utah) 53 Pac. 1122; Griffin v. Farrier (Minn.) 21 N. W. 553; Tyler v. Black, 13 How. 230, 14 L. Ed. 124; Haygarth v. Wearing, L. R. 12 Eq. 320. The cases of Tyler v. Black and Haygarth v. Wearing, supra, are similar to the case at bar, in that the false representations were made by a vendee to a vendor in order to induce the vendor to convey. In each case the contract of sale was rescinded by rea.son of the fraudulent representations of the

vendee. The other cases cited apply to the general principle that false representations made by a vendor with the intent to induce a vendee to buy, which are relied upon under circumstances similar to this case, where the property is remote from the parties at the time, become representations of fact, and not of opinion, and constitute actionable fraud. Appellants also invoke the rule that mere inadequacy of price is not sufficient to establish fraud or furnish ground for equitable relief. It is true that fact of itself does not establish fraud, but when representations as to value are made, which fix it at a manifestly inadequate sum, and when they are made for the purpose of inducing one to part with his property for such inadequate amount, under circumstances which place him at a disadvantage, they may become actionable fraud. As applying to the principle that one cannot be relieved on the ground of fraud when he has neglected to use the means at his command for ascertaining the truth before acting, appellants cite a number of decisions of this court, but in those cases the means for acquiring knowledge concerning the subject-matter were close at hand, and the truth was easily ascertainable. It was held that relief will not be granted on the ground of fraud when one so grossly neglects to use the opportunities immediately at hand. The alleged false representations in this case were not confined to those concerning value, but related, also, to the condition of the tax lien, and the procedure to enforce the same. Respondent was as ignorant of the facts upon that subject as he was of those concerning value. He is a tailor by occupation, and Mr. Eaton was not only a lawyer from the state of Washington, familiar with the law relating to tax procedure, but having knowledge of the exact situation as to these particular taxes. He denies that he told respondent that a tax sale had been made, or that respondent had no interest in the property. Thus there is conflict in the evidence. But even the tax complaint and summons handed respondent disclosed that such a sale would at least be made in a short time. Being ignorant of the real effect of the tax proceedings, it seems reasonably clear from the evidence that respondent was induced by what was said upon that subject, supplemented by the statements as to value, to believe that his only opportunity to realize anything from the land was then at hand. Under all these circumstances, they cannot be said to have been dealing at arms' length, but respondent was at a decided disadvantage. The evidence is such that we will not disturb the findings of the trial court.

The next error assigned is that the testimony of appellants Smith and McDonald was admitted as to alleged fraudulent representations made by appellant Eaton at the time of the assignment of the tax certificates. The theory upon which the testimony was admitted was that the representations were

a part of a preconceived scheme to fraudulently procure a conveyance from respondent; that, while neither Eaton nor said Nolte in any sense represented respondent, yet, by representing to Smith and McDonald that they were authorized by respondent to pay his taxes, they thus procured possession of the certificates, which enabled them to begin foreclosure proceedings, and afterwards to go to respondent and represent that they held the tax title to the land. Under this theory, we think the testimony was admissible. Upon this point appellants cite McKay v. Russell, 3 Wash. St. 378, 28 Pac. 908, 28 Am. St. Rep. 44, but in that case the alleged representations sought to be shown related to another and entirely different transaction, and were in no manner connected with the one under investigation. But the evidence complained of here was introduced on the theory that it was a link in the chain of fraudulent acts leading up to the final consummation of the conspiracy to procure a deed from respondent.

We find no error, and the judgment is affirmed.

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OWEN v. WASHINGTON & C. R. RY. CO. (Supreme Court of Washington. July 25, 1902.) CARRIERS OF PASSENGERS-DUTY TO LIGHT PREMISES-NEGLIGENCE OF AGENTCONTRIBUTORY NEGLIGENCE.

1. Though a railroad company had made diligent effort to have the city furnish a light for its premises where passengers got off, and the city had undertaken to do so, the company in good faith relying thereon, if the city was negligent in this respect such negligence was imputed to the company.

2. Where a passenger, who knows where the platform is, alights on the opposite side for his own convenience, it is for the jury whether, under all the attending circumstances, it is negligence in the particular case.

3. In an action against a railroad for personal injuries, plaintiff testified that he was 91 years old; that, when the train stopped, the conductor told him he could get off on the opposite side without fear; that it was very dark, and that after the train pulled out he attempted to find the platform; that he crawled upon what he supposed was the platform, and, in walking along it, fell off and was injured. Held, that a nonsuit was properly denied.

Appeal from superior court, Walla Walla county; Thos. H. Brents, Judge.

Action by Admiral N. Owen against the Washington & Columbia River Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

Garrecht & Dunphy, for appellant. B. S. Grosscup and W. T. Dovell, for respondent.

HADLEY, J. This suit was brought by appellant against respondent to recover dam2. See Carriers, vol. 9, Cent. Dig. §§ 1388, 1390.

ages for personal injuries. On the 7th day of July, 1900, appellant purchased a ticket from respondent for a round-trip passage over its railroad from Walla Walla to Waitsburg. A political meeting was held at the latter place in the evening of the same day, and appellant, together with a large number of other persons, took passage upon the same train, bound for Waitsburg, for the purpose of attending said meeting. The train carrying these passengers on the return trip reached Walla Walla near midnight of the same day, and stopped in front of respondent's passenger depot in said city. It is alleged in the complaint that the night was dark, and that appellant, not knowing upon which side of the train the depot and platform stood, alighted from the train on the side away from the depot platform, and thereafter the train moved away; that there were no lights visible in or about the depot or the platform, or the tracks in front thereof, and no person was in attendance thereabout; that appellant was unfamiliar with the premises, knowing only that there was a platform between the depot and tracks, and he was unable, on account of the extreme darkness, to locate the platform with reference to the place of his exit from the train; that by reason of the darkness he could not see the depot or platform, and supposing them to be in a certain direction, and knowing of no other way, walked carefully and at a slow gait in the supposed direction of the depot and platform, until he found a platform which surrounds the freight house, which is about 30 feet from the passenger platform, and which appellant supposed to be said platform; that he walked slowly and carefully thereon in what he supposed and believed to be the direction of the public highway, knowing of no other way, when, without notice or warning, he stepped off the platform and fell to the ground, a distance of 21⁄2 feet, thereby sustaining great injuries, to wit, the knee cap of his left leg was broken and shattered, and his left shoulder was badly bruised. It is alleged that the injuries were due to the negligence of respondent in failing to have the depot and platform and the tracks in front thereof lighted, and also in failing to provide servants to safely guide passengers from the train to the passenger platform. The answer denies the material allegations of the complaint, and alleges contributory negligence. A trial was had before a jury, which resulted in a verdict in favor of respondent, the defendant below. Judgment was entered that appellant shall take nothing by his action, from which he has appealed.

The errors assigned are based upon the instructions of the court, and upon its refusal to grant the motion for a new trial. The court properly instructed the jury that it is the duty of a railroad company to provide safe and convenient means of approach to its stations for all persons taking passage

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