
    [No. 21095.
    Department One.
    October 8, 1928.]
    Inland Empire Land Company, Respondent, v. Douglas County, Appellant. 
      
    
    
      Frank B. Malloy and Sam M. Driver, for appellant.
    
      William M. Clapp, for respondent.
    
      
      Reported in 270 Pac. 812.
    
   Parker, J.

The plaintiff land company, interested as owner or mortgagee in sixty-one tracts of farm land in Douglas county, commenced two actions in the superior court for that county seeking decrees adjudicating a reduction of assessed valuation of each of those tracts, made for the purpose of taxation by the taxing officers of that county for the years 1919 to 1925, inclusive, claiming the assessments so made to be fraudulently excessive. The land company offers to pay the taxes for those years, chargeable against the lands upon the basis of such fair assessed valuation as the court may decree. There is also pending a tax foreclosure action in the superior court for Douglas county, instituted hy that county, seeking foreclosure against the lands for taxes computed upon the alleged excessive assessed valuation of those years. These actions were consolidated for the purpose of determining the question of excessive assessed valuations; the county’s tax foreclosure action being stayed pending such determination.

The consolidated cause, being of equitable cognizance, proceeded to trial upon the merits before the court sitting without a jury, and resulted in a decree favorable to the land company, reducing the assessed valuation upon each of thirty-four of the tracts to less than fifty per cent of that fixed by the taxing officer of the county; and reducing the assessed valuation upon each of twenty of the tracts to approximately sixty per cent of that fixed by the taxing officer of the county. There is no controversy of any moment over the assessed valuations of the seven remaining tracts, they having been left by the trial court undisturbed, except in minor respects. From this disposition of the cause in the superior court, the county has appealed to this court.

The trial court did not make any formal findings, but the enumeration of the several tracts in the decree and the specifying therein of the reduced valuation of each tract was, in effect, a finding by the court of its fair reduced value for the purposes of taxation for the taxing years in question. There was no evidence introduced to show comparative assessed valuations; that is, as between assessments of these lands and assessment of other lands similar in character and situation. So, we have here a controversy of pure excessive valuations for purposes of taxation, independent of comparative excessive valuations.

Excessive valuations for purposes of taxation may be so flagrant as to amount to constructive fraud calling for interference by the courts, thougb there be no evidence of excessive comparative valuation. Tacoma Mill Co. v. Pierce County, 130 Wash. 358, 227 Pac. 500; Inland Empire Land Co. v. Grant County, 138 Wash. 439, 245 Pac. 14.

Tbe evidence introduced upon tbe trial is voluminous and conflicting. As to tbe actual value of tbe several tracts, tbe evidence is largely opinion testimony, as is usual in sucb controversies. We cannot say that tbis evidence preponderates against tbe trial court’s conclusions, which bave further strong support in tbe evidence touching tbe depressed farming conditions and land values in Douglas county since the year 1919. To discuss tbe evidence in detail here with a view of demonstrating tbe correctness of tbe trial court’s conclusions would be of no value. We deem it sufficient to say that we do not see our way clear to disturb tbe conclusions of tbe trial court, either as to tbe fair value of tbe several tracts for purposes of taxation, or as to tbe assessments made by tbe taxing officers being excessive to tbe extent of being constructively fraudulent.

Tbe land company’s interest in some of these tracts was proven to be only its interest as mortgagee. Tbis, counsel for tbe county contend, is not sucb an interest as entitles tbe land company to maintain these actions. Tbe argument is that these are, in effect, actions to remove clouds upon tbe land company’s mortgagor’s titles to tbe lands, and that a mere mortgage lienor, out of possession of tbe mortgaged property, cannot maintain sucb an action.

It is true that actions of tbis nature bave sometimes been referred to as actions to remove clouds upon title to property, as was done in our opinion in Inland Empire Land Co. v. Grant County, 138 Wash. 439, 245 Pac. 14, where the action was so regarded for the purpose of tolling the statute of limitations; but it seems to us that, while actions of this nature are in a sense actions to remove clouds upon real property, they are something more than that. They ordinarily do not, and certainly these actions do not, contemplate the absolute removal of clouds upon the land company’s mortgagor’s titles as being clouds wholly without legal foundation; but they contemplate a determination of the lawful amount of the tax liens which are sought to be removed; not as clouds wholly without legal foundation, but, upon an adjudication of the correct amount thereof, ultimate satisfaction by payment of those amounts and so removing the liens constituting the so-called clouds upon the titles.

It is a well-settled general rule that a mortgage lienor has the right to protect his interest in the mortgaged property by paying superior liens thereon; 19 R. C. L. 399; 41 C. J. 605; and in our statute relating to the assessment, levy and collection of taxes, Laws of 1925, Ex. Ses., p. 292, § 103 (Rem. 1927 Sup., § 11097-103), we read:

“Any person who has a lien by mortgage or otherwise, upon any real property upon which the taxes have not been paid, may pay such taxes and the interest, penalty and costs thereon; and the receipt of the county treasurer shall constitute an additional lien upon such land, to the amount therein stated; and the amount so paid and the interest thereon at the rate specified in the mortgage or other instrument shall be collectible with, or as a part of,.and in the same manner as the amount secured by the original lien.”

Looking to the equities of this particular controversy, the record here warrants the conclusion that the land company’s mortgage interest in the several tracts, other than those to which it has the legal title, is, as to each, equal to or more in amount than the value of each of the several tracts in which it is so interested. It seems to us that, at all events, under the circumstances of this controversy, the land company is entitled to maintain these actions.

The decree is in all things affirmed.

Fullerton, C. J., Tolman, Mitchell, and French, JJ., concur.  