
    [No. 6140.
    Decided July 27, 1906.]
    J. W. Wheeler Company, Respondent, v. A. C. Pates et al., Appellants.
      
    
    Taxation — Purchaser at Void Sale — Lien for Subsequent Taxes. Purchasers at a void tax foreclosure sale, who in good faith pay subsequent taxes in the belief that they have title, are not mere volunteers but are entitled to a lien for the amount of the taxes paid, although meantime the title was attacked and litigation was waged in good faith.
    Same — Transfer of Tax Title — Right to Recover Taxes Paid by Grantor. Upon the transfer of a void tax title, the payment in good faith of subsequent taxes by any of the grantors inures to the benefit of grantees for a valuable consideration, entitling the last grantee to a lien for all such taxes paid.
    Same — Interest. The holders of a void tax title who acquire a lien for subsequent taxes, paid by them in good faith, are not entitled to the statutory interest charge of fifteen per cent, but can recover interest at the legal rate only, from the time the payments were made until tender.
    Costs — On Appeal — Reduction of Judgment. Upon the affirmance of a judgment, except a reduction in a substantial amount (thirty dollars), the appellants are entitled to their costs on appeal.
    Appeal from a judgment of the superior court for King county, Griffin, J., entered December 18, 1905, in favor of tbe plaintiff, after a bearing on the merits, decreeing a lien against land for taxes and assessments plaid by the holders of an invalid tax title.
    Modified.
    
      P. P. Carroll and John E. Carroll, for appellants.
    
      Byers & Byers, for respondent.
    
      
      Reported in 86 Pac. 625.
    
   Hadley, J.

This action was brought for the purpose of subjecting certain land to a lien for taxes and assessments paid thereon by one not the real owner. On or about January 4, 1900, one Bailey purchased a delinquent tax certificate from the treasurer of King county, which purported to be for delinquent taxes upon the land in question. He thereafter brought suit to foreclose, and as a result thereof obtained a deed from the county treasurer for the property. Thereafter, the superior court of King county adjudged that the foreclosure aforesaid was null and void, and that the title acquired by Bailey thereunder was of no force- and effect, and on or about the 20th day of May, 1905, this court affirmed the judgment. Pending all these proceedings, the interest of Bailey in the- supposed tax title, was, by mesne conveyances through Bailey and his grantees, transferred to the plaintiff herein. Meantime the taxes and assessments in question were paid, most of them by the plaintiff and a part by Bailey, the first grantor of the tax title-. On or about June 14, 1905, the defendants offered to pay to plaintiff the taxes and assessments which had been paid by Bailey and the plaintiff, and the offer was refused. The court held that the plaintiff is entitled to a lien upton the land for the aggregate of the several amounts p-aid, together with fifteen per cent per annum interest on the amounts of the respective payments from the dates they were made until June 14, 1905. Such a lien was by decree declared, the land was ordered sold for the satisfaction thereof, and the defendants were awarded their costs in the action. The defendants have appealed.

It is contended that neither the respondent, which is a corporation, nor its grantors ever had any actual interest in the property which justified them in assuming to pay the taxes and assessments, and that they.were mere volunteers. We think the evidence does not support this contention. The payments were undoubtedly made in good faith, believing that a tax title existed. It is time that meantime that title was attacked, but litigation thereon was waged in evident good faith and was even carried to this court. The payments having been made in good faith and in the belief that the .playors had title to the land, they were not mere volunteers. The payments have all inured'to the benefit of the land, and under the circumstances and within the previous holdings of this court, the land should be charged with a lien for the amount paid.

It is urged, however, that the respondent has not shown itself entitled to a lien for all of these taxes and assessments, inasmuch as there were several intermediate grantors between Bailey and respondent, and the court found that the pay-meats were made by Bailey and the grantors of respondent and by respondent. It was stated at the trial that no payments were made except by Bailey and respondent, and the statement was not disputed, but appellants may not have been advised as to the fact in that regard. Be that as it may, when payments were made by Bailey or any of his grantees, they were made on the faith of the suplposed tax title, and they inured to the benefit thereof. When Bailey and his grantees transferred the supposed title, presumably, of course, for a valuable consideration, they transferred whatever belonged with it, or what had inured to its benefit. All rights which the several grantors had arising from or incidental to the supposed title were transferred by their deeds. Among these was the right to a lien for taxes and assessments paid for the benefit of. the supposed title, which right as between the several grantors and the grantees became an incident to that title. Besplondent as the last grantee of that title is, therefore, the holder of all it contained and of all that was incidental to it, and is entitled to a lien for the whole amount paid.

It is also contended that the judgment is excessive in that the fifteen per cent per annum rate of interest allowed upon the several payments was without authority in law. We think this contention must be sustained. Respondent’s right of recovery is not based upon any statute, but it is upon purely equitable grounds arising from the fact that the payments made have inured to the benefit of appellants and have accomplished for them the discharge of a duty with respect to the land which they, as the real owners, were under obligations to discharge themselves. Hoi right of recovery exists here by reason of a certificate of delinquency which would by statute authorize the recovery of the rate of interest specified by the trial court. In the absence of a statute authorizing the recovery upon a given cause of action of a greater rate of interest than the legal rate, no higher rate can he imposed. In this respect the judgment must therefore he modified so as to include interest at the legal rate only up.lon the several payments from the time they were made until June If, 1905. The court fixed the latter date evidently for the reason that it was on that day that appellants offered to pay respondent the taxes, and the offer was. retfused. The judgment in that particular was right and, for the same reason, the judgment properly awarded applellanta their costs in the court below.

The judgment is in all respects affirmed, except as to the amount of interest allowed, and since the modification of the judgment effects a substantial reduction in the amount, approximating $30, appellants are entitled to recover their costs on this appeal. The cause is therefore remanded, with instructions to modify the judgment in accordance with this opinion, and appellants shall recover their costs on the appeal.

Mount, O. J., Dunbar, Crow, Rudkin, and Fullerton, JJ., concur.  