16 74 $18 132 Stat. (Vol. 1, Hill's Code), and the rule announced by this court in Yesler v. Hochstettler, supra: "If the evidence of the opposite parties leaves the matter in doubt, the presumption continues to weigh for the community, and will decide the question.” Upon consideration of the entire record we are unable to say that the findings of the lower court were not sustained by the evidence, and its judgment and decree will be affirmed. ANDERS, DUNBAR and SCOTT, JJ., concur. [No. 2357. Decided December 7, 1896.] E. M. HERRICK, Appellant, v. U. R. NIESZ et ux., Respondents. DISMISSAL OF ACTION — LIMITATION OF ACTIONS - OBJECTION NOT RAISED A motion by plaintiff to dismiss his complaint at his own costs comes too late, when not made until the court has filed a written opinion announcing his findings and conclusions and directing the entry of a decree in accordance therewith. The defense that the statute of limitations has run against plaintiff's cause of action cannot be raised on appeal, when not raised in the court below by demurrer or answer. Laws 188-86, p. 92, providing that no holder or owner of a tax certificate shall be entitled to a deed of the lands purchased at tax sale, unless he shall have given notice of his application for deed at least sixty days prior to the expiration of the three years allowed the owner for redemption, applies to tax certificates of sale issued prior to the taking effect of the act. The fact that a statute is so far retrospective as to be applicable to certificates already issued for tax sales does not put it in conflict with the federal constitution which provides that no state shall pass any law impairing the obligations of contracts. Dec. 1896.] Opinion of the Court-GORDON, J. Code 1881, § 2937, making a tax deed conclusive evidence of the regularity of all other proceedings from the assessment by the assessor to the execution of the deed, does not make such deed conclusive evidence that the holder had complied with the provisions of a later statute requiring notice to the owner or occupant of the land by the holder of the tax certificate thereon that application for a tax deed would be made at the expiration of the period allowed for redemption. Appeal from Superior Court, King County.-Hon. J. W. LANGLEY, Judge. Reversed. Mitchell Gilliam, and Donworth & Howe, for appellant. J. T. Ronald, for respondents. The opinion of the court was delivered by GORDON, J.-This was an action instituted by the appellant as the owner in fee of the premises described in the complaint, to cancel a tax deed executed and delivered to the respondent U. R. Niesz by the sheriff of King county, pursuant to a sale of the premises in question under a tax assessment for the year 1883, and to quiet plaintiff's title. From a judgment in favor of the defendants plaintiff has appealed. At the conclusion of the trial the court below having taken the cause under advisement, thereafter filed a written opinion upon the law and the facts, and therein directed the entry of a decree in accordance therewith. Thereupon the plaintiff moved the court for leave to dismiss his complaint at his own cost, and he predicates error upon the court's refusal to permit the action to be dismissed. In his written opinion the learned judge had substantially announced his findings and conclusions, and the application to dismiss came too late. Sommerville v. Johnson, 3 Wash. 140 (28 Pac. 373), and Waite v. Wingate, 4 Wash. 324 (30 Opinion of the Court GORDON, J. [16 Wash. Pac. 81), are not applicable to the facts here shown. An objection is made in the brief of counsel for the respondents that the statute of limitations has run against plaintiff's cause of action, but this defense was not interposed by either demurrer or answer in the court below, and we think it cannot be urged here. Section 193 of the Code provides that: "If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior or supreme court." Various question are discussed in the brief of counsel for the appellant which go to the regularity of the assessment and the proceedings taken to enforce it; but there is one main question upon the decision of which the case must turn, and we will proceed to a consideration of it. The tax deed under which respondents claim was based upon a sale of the premises in question for the delinquent taxes assessed thereon for the year 1883. The sale occurred on the first Monday in May, 1884, pursuant to the statute then in force, and on that day the sheriff executed and delivered to the respondent, U. R. Niesz, a certificate of such sale, and on the 20th of May, 1887, more than three years having elapsed from the date of the sale and the lands not having been redeemed, the respondent U. R. Niesz, having surrendered his certificate to the sheriff and paid the subsequent taxes against the land, received from the sheriff a deed of the property. At the time when the sale occurred the statute did not require any notice of the application for a tax deed to be given, but subsequent thereto and Dec. 1896.] Opinion of the Court―GORDON, J. prior to the execution of the deed by the sheriff to the respondent, viz., on February 3, 1886 (Laws 1885-86, p. 92), § 2934 of the Code of 1881, (in force at the time of the assessment and sale), was amended by adding the following thereto, viz: "Provided, however, that no holder or owner of such certificate shall be entitled to a deed of the lands or lots so purchased until the following conditions have been complied with." Then follow provisions requiring that notice should be given persons in actual possession or occupancy of the land, and also the person in whose name the same was taxed or assessed, at least sixty days prior to the expiration of the three years (provided by law for redemption), and requiring the holder of the certificate to make proof of the giving of such notice, and cause the same to be recorded in the office of the auditor of the county in which the land is situated. The lower court found "That none of the acts or things required to be done by the purchaser at a tax sale, contained in the provisions of Section 1 [being the provision just referred to], are shown to have been done, by the records of the sheriff's office in King county, State of Washington, or by the records of the auditor's office of King county, State of Washington, or either of the said offices, or by any other evidence in said cause." Appellant contends that the trial court erred in admitting the tax deed in evidence and thereafter in adjudging the same to be valid and holding that respondents acquired title thereunder. Against this contention the respondents urge, (1) that the act of February 3, 1886, supra, does not, and was not intended to apply to sales theretofore occurring; (2) that if the act should be considered as applying to respondent's deed, then it conflicts with the provisions Opinion of the Court-GORDON, J. [16 Wash. of § 10, art. 1, of the federal constitution, and should be held for naught; (3) if it should be considered that the act applied to the tax sale in question and be further found not to be in conflict with the federal constitution, nevertheless the tax deed is conclusive evidence that the notice required by the act of February 3, 1886, was given, and that any evidence to the contrary was inadmissible. Considering these objections in the order mentioned, we observe that at the time of the enactment of the amendment of 1886, supra, about fourteen months remained before the expiration of the period for redemption from the tax sale in question, and this constituted a reasonable time to enable the purchaser to take the steps which that statute required. The language of the act is sufficiently broad and comprehensive to apply to the proceedings we are now considering; and, in holding its provisions applicable to the proceedings which terminated in a tax deed to the respondent, we do not necessarily give them a retroactive effect. Nor do we think that, when held to apply to respondents' deed, the act impairs any constitutional right of the respondents. A like question was mooted but not decided by this court in Ford v. Durie, 8 Wash. 90 (35 Pac. 595, 1082). While the authorities are conflicting upon this question, nevertheless it is one which involves the construction of a provision of the federal constitution, and it is sufficient to ascertain, if possible, what view is taken of it by the supreme court of the United States, and, when that is ascertained, to accept it as conclusive. Curtis v. Whitney, 13 Wall. 68, was a case in which this question was directly involved and the court there say: |