than where he might think they ought to be located or established. The commissioner's report, however, shows that, after a most diligent search, he was unable to find the original quarter corner or meander corner posts or any traces thereof, and the evidence of appellants' and respondents' witnesses, including several competent surveyors, shows that they were likewise unable to find the

same.

This being true, it became the duty of the commissioner to re-establish the lost line and relocate the lost quarter corner and lost meander corner. He did this by proceeding from conceded monuments and corners fixed by the government surveyors, and by following the government field notes, and the trial court acted properly in approving his action and report.

We also conclude that no error was committed in denying the motion for a new trial. The appellants contend that they are entitled to a new trial on account of newly discovered evidence, which they now claim will show that the original meander corner can be found and located at a point some 356.65 feet west of the meander corner established by the commissioner. They do not claim, however, that any monument, or any traces thereof, still remain at the point mentioned. We have examined appellants' newly discovered evidence as disclosed in their affidavits, and conclude that it is too vague, indefinite, and uncertain to fix the meander corner in accordance with their present contention, at a point 356.65 feet west of the true north and south line established by the commissioner. Evidence to sustain such a contention should be most clear and convincing.

The appellant Sullivan contends that the trial court erred in denying his motion to vacate the default entered against him. He concedes that he was absent from the state at the time the summons was published. The default was entered on July 25, 1904. The affidavits presented in support of his motion show that he returned to the state some time in the following November, and then knew of the pendency of this action, and that he also knew Commissioner Snow was making his survey. He filed no motion to set aside the default until July 7, 1905, at which time he did not tender any answer, but in his own affidavit supporting his motion, alleged that he had stated all the facts with reference to said proceeding and said boundary line to his attorney, and was advised by him that he had a good and meritorious defense. His affidavit shows his only contention to be that the original government meander corner post was located

some 356.65 feet west of the point fixed by the report of Commissioner Snow. He does not attempt to show that any monument. still remains or can be found at that point. On the contrary a clear inference arises from his affidavits that it does not now exist. It will thus be seen that he is now proposing to ascertain and fix a corner and a lost monument by vague and uncertain evidence not sufficient to sustain findings which he would necessarily ask. Were we to concede everything for which he contends in his affidavits and his application to set aside the default, we would still conclude that his showing is insufficient. His application was made before entry of final judgment, and he contends that, under section 4880, Ballinger's Ann. Codes & St., it should have been granted as a matter of right. This section provides that where a defendant has not been served personally in the cases provided in sections 4878 and 4879, he shall on application and sufficient cause shown at any time before judgment, be allowed to defend. The Legislature, in enacting these sections, intended that a defendant should not be allowed to defend except upon sufficient cause shown. We do not think any such showing has been made by the appellant Sullivan.

The appellant Sullivan also claims that he is entitled to have the default vacated by reason of the provisions of section 5518, Ballinger's Ann. Codes & St. That section, however, refers only to an action for the recovery of the possession of real property. This is not such an action. This action was commenced by the appellants Strunz and wife to re-establish a lost boundary line, and not to recover possession of real property. No error was committed by the trial court in refusing to vacate said default.

Appellants Strunz and wife further contend that the trial court erred in taxing against them the entire costs of this proceeding. In Cadeau v. Elliott, 7 Wash. 205, 34 Pac. 916, we held that an equitable apportionment of costs in a case of this char-acter would be an equal division of the same between the parties, and that rule should prevail here.

It is ordered that the judgment of the superior court be modified, to the extent of taxing the costs equally between the appellants Strunz and wife and the respondents Hood and wife, and, as so modified, said judgment will be affirmed. The respondents, Hood and wife will recover their costs on: this appeal

MOUNT, C. J., and ROOT, DUNBAR, FULLERTON, and HADLEY, JJ., concur.

(44 Wash. 132)

ALBRING et al. v. PETRONIO. (Supreme Court of Washington. Oct. 13, 1906.) 1. TAXATION-TAX SALES-STATUTES.

Ballinger's Ann. Codes & St. §§ 810, 814, 815, providing for the sale of lands for the nonpayment of delinquent taxes and assessments, must be strictly pursued in order to sustain a title thereunder.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1263, 1264.]

2 SAME-DEFECTIVE PROCEEDINGS-REDemp.

TION.

Ballinger's Ann. Codes & St. § 810, provides that when land is sold for delinquent assessments, the treasurer shall issue a certificate to the purchaser which must be recorded within three months in the office of the county auditor. Section 814 secures to the purchaser a lien on the land for the amount paid, and for all taxes and special assessments, interests, etc., which may be subsequently levied, and contemplates that the purchaser during the period of redemption guarantied by section 815 shall pay all taxes and public charges against the property. Held, that where neither the purchaser of land for delinquent special assessments, nor his assignee, ever made any payments of general taxes on the land, after obtaining a certificate and made no tender of such payments nor any effort to give the original owners notice of such sale, the proceedings were fatally defective, and the owners were entitled to redeem.

3. SAME TIME OF REDEMPTION-EXPIRATION -NOTICE.

Ballinger's Ann. Codes & St. § 815, provides that where land has been sold for nonpayment of delinquent assessments, before a deed shall be made, the holder of the certificate of sale shall have notified the owners that he holds the certificate, and that he will demand a deed, which notice shall be given by personal service or publication as provided. Held, that such section only authorized service of publication after the certificate holder has made an honest and diligent search for the owner in order to make personal service of such notice.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1424, 1425.]

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action by A. J. Albring and another against Emanuel Petronio to redeem certain land from a sale for delinquent special assessments. From a decree dismissing the complaint, plaintiffs appeal. Reversed and remanded.

Harrison B. Martin and Byers & Byers, for appellants. William Hickman Moore, G. Edgar Hayes, and Dallas V. Halverstad, for respondent.

CROW, J. On December 19, 1890, the plaintiffs A. J. Albring and Alice F. Albring, husband and wife, purchased in the name of said A. J. Albring, as their community property, lots 8 and 4 in block 2 of Prospect Terrace Second addition to the city of Seattle, and having promptly recorded their deed, have ever since owned the same, unless their title has been divested by the proceedings hereinafter mentioned. On October 30, 1899, in pursuance of the provisions of the eminent domain act of 1893, Ballinger's Ann. Codes & St. 775 et seq., the council of the city of Seattle passed Ordinance No. 5624, en

87 P.-4

titled "An ordinance laying out and establishing a public street in the city of Seattle, commencing on the south margin of Yakima avenue and running thence southeasterly across block two (2) of Baxter's addition to the city of Seattle and across lot one (1) of block three (3) of said addition to an intersection with the west margin of Thirtieth Avenue South at a point sixty (60) feet south of the south margin of Norman street, and providing for the taking and damaging of the land and other property necessary therefor, and for the ascertainment and payment of the just compensation to be made for the private property to be taken or damaged for said purpose, and for an assessment upon the property benefited for the purpose of making such compensation." After the passage and approval of said ordinance, the city filed in the superior court of King county its petition, praying that just compensation be made for the lands and property to be taken and damaged. Afterwards, it filed a supplemental petition for the appointment of commissioners to make a special assessment on the lands to be specially benefited by said improvement. An assessment district was created, which included said lots 3 and 4, and an assessment of $12 was levied against each of them. Afterwards said assessment was certified to the treasurer of said city, who, on the 27th day of March, 1901, sold said lots for the purpose of collecting said assessments which had become delinquent. Said sale was made to one Carrie B. Osborne, who paid $30 for lot 3 and $27 for lot 4, and said treasurer issued to her two certificates of purchase which were recorded in the office of the auditor of King county, Wash. Afterwards said Carrie B. Osborne assigned said certificates to the defendant Emanuel Petronio. On the 23d day of October, 1903, the period of redemption having expired, and said Emanuel Petronio having published notice to the plaintiff A. J. Albring, said city treasurer executed to him two separate deeds for said lots, which he caused to be recorded on October 31, 1903. It appears from undisputed evidence that the plaintiffs A. J. Albring and wife at all times from the date of their purchase of said real estate in 1890, until the commencement of this action, resided in the city of Spokane; that their place of residence was unknown to the commissioners who made said assessment, to the officials of the city of Seattle, or to said Emanuel Petronio, or to any of them; but was known at the office of the treasurer of King county; that said plaintiffs at no time prior to the execution and recording of said deeds to Emanuel Pe tronio had any actual notice or knowledge, or means of obtaining knowledge, that said ordinance had been passed; that said improvement had been made; that said assessment had been levied; that the same had become delinquent; that said sale had been made, or that said deeds had been executed

and delivered to the defendant Emanuel Petronio. In fact, they were at all of said times entirely ignorant of the pendency and progress of any of said proceedings. It appears

that said lots, although within the assessment district, were located at a point of from one-fourth to one-half a mile distant from said improvement; that had the plaintiffs gone upon their property and inspected the same, they would not have observed any improvements being made, nor would they have come into the possession of facts tending to put them upon inquiry; that said lots were at all of said times vacant and unimproved; and that they were of the reasonable total value of $1,000. During the entire two-year period of redemption granted by section 815, Ballinger's Ann. Codes & St. and at all times prior to the execution and delivery of said deeds, the said plaintiffs promptly paid all general taxes levied against said lots, remitting the same to the treasurer of King county, Wash. Their first knowledge of said assessment proceedings or of the execution and delivery of said deeds was obtained in the year 1904, when they tendered payment of the state and county taxes for the year 1903, and were informed by the county treasurer that payment had been made by the defendant Petronio, who claimed to own the property. Thereupon, the plaintiffs made an investigation, and for the first time learned the facts. They immediately tendered to the said Emanuel Petronio the full amount of said assessments with all penalties, interest, and costs, and all subsequent assessments and taxes paid by him, which tender being refused this action was instituted to set aside said certificates of purchase and tax deeds, to declare the same void, to quiet their title to said property, and to permit the plaintiffs to redeem. The plaintiffs have pleaded all of the facts above set forth, and the defendant in his answer has also pleaded as the source of his alleged title the various proceedings culminating in said assessment, sale, and deeds. There is no substantial dispute as to the facts involved in this case. The trial court, after refusing findings requested by the plaintiffs without making any findings whatever, entered a decree dismissing their complaint. From said final judgment this appeal has been taken.

The appellants have made numerous assignments of error, contending in substance (1) that the statute under which said proceedings and pretended sale have been conducted is unconstitutional; (2) that their property has been taken without due process of law; (3) that they were entitled to judgment upon the pleadings for which their motion was denied; and (4) that if said eminent domain act is held to be constitutional, it must be strictly construed as against the respondent who claims title under the proceedings therein authorized. It is always the duty of the courts to sustain the constitutionality of legislative enactments if they can

possibly do so. By reason of the view which we take of said act in so far as it affects this action, it will not be necessary to question its constitutionality in any particular. The record before us shows that all notices to the appellants during the entire course of these proceedings were given by publication, their address being unknown to any of the city officials or the respondent. The purpose of such publications was to advise the parties interested of the nature and pendency of the various proceedings, so that, if possible, they might have actual notice of the same. It is conceded that such a result was not accomplished in this case. The appellants now contend that said eminent domain act, if constitutional, should be strictly construed, as it strongly derogates from usually accepted ideas of property rights. We think this contention should be sustained. The respondent's only claim of title is under these proceedings. He has purchased property of the value of $1,000 for the small sum of $57 with such additional expenses and taxes as he may have since disbursed, which are merely nominal. If he is to obtain and retain the legal title, he should be permitted to do so only upon an exact compliance with every requirement of the statute strictly construed as against him. Section 810, Ballinger's Ann. Codes & St., provides that, when the sale is first made by the treasurer, he shall issue to the purchaser a certificate which must be recorded in the office of the county auditor within three months from the date thereof. Section 814, Ballinger's Ann. Codes & St., secures to the purchaser holding. such certificate a lien on the lot or parcel of land sold for the amount paid by him, as well as for all taxes and special assessments and all interest, penalties, cost, and charges thereon, whether levied previously or subsequently to such sale, and whether for state, county, city. or town purposes, subsequently paid by him, and that he shall be entitled to interest at the rate of 20 per cent. per annum on the original amount paid, and such subsequent payments, from the date of the respective payments. This provision undoubtedly contemplates that the certificate shall not convey a title, but shall only secure to the purchaser during the period of redemption a lien for the sums mentioned. It also contemplates that the holder of said certificate shall, during the period of redemption which is guarantied by section 815, pay all taxes and public charges against said property whether the same be for state, county, city, or town purposes. Neither the respondent nor his assignor ever made any payments of general taxes during said period. The record does not show that they ever tendered any such payments, nor does it explain why such payments were not made by them. We think one purpose of this provision for the payment of such taxes by the holder of the certificate is to furnish an additional means of actual

notice to the owners of the property that the assessment has been levied, that the preliminary sale has been made, and that the certificate has been issued, so that they may obtain such actual knowledge in ample time to redeem. In this instance the appellants were deprived of this opportunity, the respondent and his assignor having failed to make such payments. Section 815, after providing for a period of redemption of two years, also provides that said redemption may be made by the owner upon payment of the amount for which the lots were sold, with interest at the rate of 20 per cent. per annum, together with all taxes, special assessments and interest, penalties, and charges thereon paid by the purchaser with like interest thereon. Said section further provides, that unless written notice of taxes and assessments subsequently paid, and the amount thereof, shall be lodged with the treasurer, redemption may be made without including the same. This provision not only contemplates that the holder of the certificate of purchase shall pay these general taxes and other charges, but also that he shall, for the protection of his lien, file written notice of such payment with the city treasurer. Said section 815 further provides that, before a deed shall be made, the holder of the certificate of sale shall have notified the owners of said lots or parcels of land that he holds said certificate, and that he will demand a deed therefor; that said notice shall be given by personal service, or by publication in a weekly newspaper published in said city once each week for three successive weeks. Our construction of this statute is that it contemplates a personal service if it can possibly be made. This being true, the holder of the certificate should make an honest and diligent search for the owner. If the owner cannot thus be found, then service by publication may be made. In this instance the respondent is not shown to have had any actual knowledge of the post-office address or residence of the appellants, nor is he shown to have made any such search; but the record shows that said appellants had, during the entire period of redemption, been paying the general taxes upon this property, and that the county treasurer had their post-office address. The respondent himself failed to make such payment of taxes. If he was acting in good faith, he could only have done so by reason of the fact that the payments were first made with such promptness by the appellants as to prevent payment by him. But if this was the case, the address of the appellants would certainly have been obtainable at the office of the county treasurer, and could have been readily learned by the respondent. If he failed to call at said office and tender payment of the state and county taxes as was his duty, he thereby either intentionally or unintentionally deprived himself of an opportunity for learning the ad

dress of the appellants, which would have enabled him to serve them with personal notice. This was an act of omission upon his part for which the appellants are in no way responsible, but which resulted in preserving their profound and excusable ignorance of any of the proceedings. Said section 815 further provides that the treasurer's deed shall be executed only after payment of all subsequent taxes and special assessments on said lots. This provision evidently contemplates that, as a condition precedent to the obtaining of said deeds, a showing must be made to the city treasurer that all taxes and special assessments which have become due either prior or subsequent to the original sale have been paid. This being true, the respondent necessarily was obliged to ascertain whether said taxes and assessments had been paid. Had he done this, he would have learned before the execution of the deed that their payment had been made by the appellants, and necessarily would have also learned appellants' address.

Our view is that this statute must be strictly construed as against the respondent; that he must be held to a complete and exact compliance with all of its provisions as a condition precedent to obtaining his deeds. Had he succeeded in giving personal notice to the appellants, a less stringent rule might be invoked in his behalf. He failed to pay said taxes, to attempt their payment, or to explain their nonpayment by him. He permitted their payment to be made by the appellants during the period of redemption. He failed to avail himself of an opportunity which he had during the period of redemption for obtaining knowledge of the appellants' post-office address and place of residence, and has thereby placed himself in a position which he may think will excuse his having given them notice by publication instead of personal service. This is an action in equity and, under these circumstances, we think appellants are in equity and good conscience entitled to redeem said property. Were we to hold that the appellants are without remedy. we would be placing a construction upon said statute which would enable unscrupulous persons to avail themselves of its provisions as a means of fraud and oppression against innocent owners of property. This we should not do. Our duty is to so construe it that it may be available as a reasonable and proper measure for the collection of delinquent assessments as contemplated by the Legislature. While there is nothing in the record affirmatively showing any intentional fraud on the part of the respondent, yet if a purchaser at a sale of this character can be permitted to hold his certificate for two years during the entire period of redemption, without the payment of taxes, without any showing why such payment was not made, without the suggestion of an effort