
    [No. 13159.
    Department One.
    June 23, 1916.]
    R. W. Hill, Appellant, v. Ada M. Calkins et al., Respondents.
      
    
    Taxation — Sales—Remedies ojt Owner — Attack on Void Sales —Tender. In replevin hy a vendee to recover property conditionally sold, in which the defense was that the property had been sold for taxes alleged to he a valid lien, plaintiffs reply that the property was distrained and sold for the taxes of another who was never the owner of the property, is not an attack upon the validity of a tax, and so is not within Rem. & Bal. Code, §§ 955, 956, making tender of the tax justly due a condition precedent to an action to recover property sold for taxes.
    Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered April 9, 1915, upon granting a nonsuit, in an action of replevin, tried to the court and a jury.
    Reversed.
    
      H. W. Lueders, for appellant.
    
      J. W. A. Nichols, for respondents.
    
      
       Reported in 153 Pac. 347.
    
   Eullerton, J.

In May, 1913, one Daisy L. Aldrich opened up rooming apartments in the city of Tacoma, partially furnishing them at the time, and adding furniture thereto during the next four months as her necessities required. On September 3, 1913, she made a conditional bill of sale of the furniture to the respondent Ada M. Calkins. The contract of sale was in writing, and provided for monthly payments on the purchase price, made time the essence of the contract, and authorized the vendor to take possession of the property in case of default. The first installment on the contract, due September 21, 1913, was paid, but no other of the installments. On November 5, 1913, the sheriff of Pierce county distrained the property for a personal property tax levied against one Byron L. Aldrich and the Hawley Hotel, for the years 1912 and 1913, and on November 29, 1913, sold the property to the respondent A. H. Garretson, giving him a bill of sale therefor. Subsequently, A. H. Garretson transferred his interest to his co-respondent, Ada M. Calkins, and she, claiming ownership of the furniture thereunder, refused to make further payments in accordance with the contract under which she purchased the property from Daisy L. Aldrich.

The appellant, R. W. Hill, is the assignee of Daisy L. Aldrich, and instituted this action under the statutes of claim and delivery to recover the property because of the breach of the terms of the contract of conditional sale. His complaint set up the conditional contract of sale and the breach thereof, alleged that the property had not been taken for any tax, assessment or fine pursuant to statute, or seized under any execution levied against the property, and was otherwise sufficient in form to state a cause of action. The respondents answered separately, denying the principal allegations of the complaint, and pleading affirmatively the distraint and sale of the property by the sheriff for taxes, averring that the taxes were a valid and existing lien on the property in virtue of the assessments against Byron L. Aldrich and the Hawley Hotel. For reply the appellant put in issue the affirmative allegations of the answer, and set up that the property was never the property of Byron L. Aid-rich or the Hawley Hotel, nor subject to any lien for taxes assessed against them or either of them, and that it was not taken for any tax levied against Daisy L. Aldrich or the appellant Hill.

At the trial, which was had before a jury, there was evidence introduced tending to prove the affirmative allegations of the complaint and .the reply. The court, however, on motion of the respondents made at the close of the appellant’s case, nonsuited the appellant and dismissed the action on the ground that the action was one to recover property sold for taxes, and that the appellant had neither set forth nor proven the tax that was justly due on the property, or alleged that the tax for which the property was sold was illegal.

In its ruling we think the court was in error. The appellant did not question the validity of the tax under which the property was sold, but contended, and offered proofs tending to show, that the property was never the property of Byron L. Aldrich or the Hawley Hotel, nor subject to distraint and sale for taxes assessed against them, or either of them. In brief, his contention was that his property was distrained and sold for another person’s taxes. Such being the claim, he did not have to attack the validity of the tax or tender its payment as a condition precedent to a recovery against the purchaser at the tax sale. He could sue the purchaser directly as for a wrongful taking, and when the tax sale was relied upon to defeat recovery, allege and show that the property was not subject to the lien of the tax or to distraint thereunder. The statute on which the court rested its judgment (Rem. & Bal. Code, §§ 955, 956; P. C. 501 §§ 373, 375) has no application to such a proceeding.

The judgment is reversed, and the cause remanded for a new trial.

Morris, C. J., Mount, Chadwick, and Ellis, JJ., concur.  