1. Taxation (§ 809*) — Action to Recoves Property Sold fob Taxes — Conditions Precedent — Payment ok Tender of Taxes — Pleading.

The statute of Washington (Ballinger’s Ann. Codes & St. Wash. §§ 5678-5680; Pierce’s Code, §§ 8733-8735) makes it a condition precedent to the maintenance of an action for the recovery of land sold for taxes in the possession of the defendant that all taxes, penalties, interest, and costs paid by the purchaser shall have been fully paid or tendered, and under the decisions of the Supreme Court of the state, which are binding on tile-federal courts, a failure to allege such payment or tender in the complaint, is a fatal defect when due objection is made.

[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1601 ; Dec. Dig. § 809. *]

2. Appeal and Error (§ 193*) — Complaint — Failure to Allege Condition Precedent — Waiver op Objection.

The objection that a complaint fails to allege a necessary condition precedent is waived if not made in the trial court, and cannot be made for the first time in an appellate court.

[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1228; Dec. Dig. § 193.*]

3. Taxation (§ 648*) — Foreclosure op Tax Dien — Conclusiveness op Judgment — Washington Statute.

Ballinger’s Ann. Codes & St. Supp. Wash. § 1751b, provides that “after the expiration of five years from the date of delinquency when any property remains on the tax rolls for which no certificate of delinquency has been issued the county treasurer shall proceed to issue certificates of delinquency on said property to the county and shall file said certificates when eomjdeted with the clerk of the court, and the treasurer shall thereon » * * proceed to foreclose in the name of the county the tax liens embraced in said certificate.” It is further provided that summons may be served by publication, which shall give notice that on a day specified the county will apply for a judgment of foreclosure. The Supreme Court of the state has held that the provision requiring the treasurer to file the certificate of delinquency with the clerk is directory only, and that a failure to so file it before suit does not affect any substantial rights of a defendant nor the jurisdiction of the court to render judgment. Section 1767 of the statute provides that such a judgment shall estop all parties from raising any objections thereto which exist at or before the rendition thereof and could haye been presented as a defense, and “shall be conclusive evidence of its regularity and validity in all collateral proceedings except in cases where the tax or assessments have been paid or the real estate was not liable to the tax or assessment.” Held, that such a judgment was not invalid nor i» abject to collateral attack because the certificate of deliquency was not filed with the clerk, nor because application for judgment was not filed until the day fixed in the notice and on which the judgment was entered, there being no statutory ‘provision requiring it to be so filed.

[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 648.*]