TAXATION ‑- VOID SALES OF REAL PROPERTY AT TAX SALE ‑- TITLE ACQUIRED BY PURCHASER ‑- REFUND OF PURCHASE PRICE -- COUNTIES ‑- ERRONEOUS SALE OF PROPERTY OWNED BY COUNTY IS INVALID

TAXATION ‑- VOID SALES OF REAL PROPERTY AT TAX SALE ‑- TITLE ACQUIRED BY PURCHASER ‑- REFUND OF PURCHASE PRICE.

COUNTIES ‑- ERRONEOUS SALE OF PROPERTY OWNED BY COUNTY IS INVALID.

When real property in tax exempt ownership is erroneously assessed and sold by the county for nonpayment of taxes, such taxes are void, the sale is invalid, no title passes to the purchaser and the purchase price cannot be refunded.

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                                                                   June 17, 1958

Honorable James E. Duree
Prosecuting Attorney
Pacific County
Post Office Box 552
Raymond, Washington                                                                              Cite as:  AGO 57-58 No. 203

Dear Sir:

            In your recent letter you have requested an opinion of this office relating to the erroneous sale of county owned property by tax foreclosure.  It appears that Pacific County, in 1950, obtained title by deed to certain real estate.  Through an error the assessor continued to assess taxes while the land was in county ownership.  In 1957 the property was sold at a tax foreclosure sale and purchased by a private individual.  Your questions may be stated as follows:

            1.  Were the taxes assessed against this county-owned property in any sense valid?

            2.  Was there any actual title obtained by the purchaser at the tax foreclosure sale?

             [[Orig. Op. Page 2]]

            3.  May the county return the purchase money to the buyer?

            We answer all of your questions in the negative.

                                                                     ANALYSIS

            When these taxes were assessed, the real property was owned by the county and was exempt from taxation.  State Constitution, Amendment XIV and RCW 84.36.010.  Such taxes were void, the foreclosure proceedings were invalid and the tax deed to the purchaser passed no title.  Halvorsen v. Pacific County, 22 Wn. (2d) 532, 156 P. (2d) 907.  The land being held by the county in its proprietary capacity could only be sold under the provisions of RCW 36.34.010 et seq. (Laws of 1945, Ch. 172.)

            In the absence of legislation to the contrary, the purchaser at a tax sale is subject to the rule ofcaveat emptor and cannot recover the purchase price paid because of failure of title in whole or in part.  Phelps v. Tacoma, 15 Wash. 367, 46 Pac. 400 (1896); Shelton v. Klickitat County, 152 Wash. 193, 277 Pac. 839 (1929);Anderson v. King County, 200 Wash. 354, 93 P. (2d) 284 (1939);Pierce County v. Newbegin, 27 Wn. (2d) 451, 178 P. (2d) 742 (1947).  See also:  1921-22 AGO 333 [[to G. W. Hamilton, Prosecuting Attorney, Benton County on July 11, 1922]]and 1945-46 AGO 317 [[1945-46 OAG 316 to Thor C. Tollefson, Prosecuting Attorney, Pierce County on August 27, 1945]], copies of which are enclosed.  See also:  1921-22 AGO 333 and 1945-46 AGO 317, copies of which are enclosed.

            The court apparently has made no distinction between property held by the county in its proprietary capacity or by tax title.  In the case ofAnderson v. King County, supra, the court at page 361 discussed the question as follows:

            "Our holding inShelton v. Klickitat County, 152 Wash. 193, 277 Pac. 839, that the purchaser at resale from the county, who acquired no title as a result of the sale being void, could not recover the purchase price from the county, is in accord with the general rule that, unless aided by express statutory authority, the holder of an invalid tax title is not entitled to recover back his money against the county or state from whom the purchase was made.  See, also,Hilton v. DeLong, 188 Wash. 162, 61 P. (2d) 1290.

            "The rule apparently is absolute that, where a statute provides for the reimbursement of purchasers at invalid tax sales, there can be no recovery under circumstances not within the terms of the statute.  61 C.J. 1467-1468, § 2076.  In discussing the  [[Orig. Op. Page 3]] question whether the rule denying recovery should apply where property is not subject to the tax for which it is sold, the editor of the annotation commencing at page 829 of Vol. 77 A.L.R., observes that 'no decision has been found which rests upon such a distinction.'"

            For a case closely analogous to the fact situation you present, seeManor Real Estate and Trust Co. v. City of Linden, 8 N.J. Super. 114, 73 A. (2d) 612 (1950).  Recovery denied.

            Therefore, we conclude that when real property exempt from taxation is erroneously taxed and sold for nonpayment of such taxes, the purchaser at the tax sale cannot obtain from the county a refund of the purchase price.  This rule is rather harsh but in view of the law as it exists any changes can only be made by the courts or the legislature.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HENRY W. WAGER
Assistant Attorney General