Cooper v. Miller

Garoutte, J.

This is an action of ejectment to recover possession of certain town lots. Plaintiff’s claim of title is based upon a tax deed, executed by the tax-collector of Central Irrigation District, upon a sale for a delinquent tax levied by the board of directors of said district. Defendants appeal from the judgment and order denying their motion for a new trial, and claim that the assessment, levy, sale, and deed made thereunder are void.

Section 30 of the irrigation act (Stats. 1887, p. 40) provides: “ The matter recited in the certificate of sale must be recited in the deed, and such deed duly acknowledged or proved is prima facie evidence that: 1. The property was assessed as required by law; 2. The property was equalized as required by law; 3. That the assessments were levied in accordance with law; 4. The assessments were not paid; 5. At a proper time and place the property was sold as prescribed by law, and by the proper officer; 6. The property was not redeemed; 7. The person who executed the deed was the proper officer.” •

Invoking these provisions of the statute, plaintiff introduced his deed in evidence as establishing aprima facie case of title in himself, and rested.

It is claimed that the assessment is void because the five town lots were assessed in one parcel with one valuation upon the whole parcel, and one' valuation for the improvements upon the entire parcel. The lots were also sold in one parcel for the nonpayment of the tax. Section 18 of the irrigation act provides that the assessor must assess “ all the property in the district, and must prepare an assessment-book with appropriate headings, in which must be listed and specified in separate columns under the appropriate head: .... 3. City and town lots, naming the city or town, and the number of lot and block, etc., and the improvements thereon.”

Is this assessment void as violative of the foregoing requirements of the law? The provisions of this act as to the manner and character of the assessment are duplicated from the provisions of the Political Code pertaining to assessments levied for the purposes of state and county taxation, and defendants, to support their contention, rely upon various decisions of this court made in the construction of those provisions of the Political Code. The principal case may be said to be Terrill v. Groves, 18 Cal. 149. There the assessment was held to be void. But that case is widely variant in its facts from the case at bar. There town lots in two distinct and separate blocks, not even contiguous, while valued separately, were carried out upon the roll in a lump assessment, and a single tax charged up against the lots as a whole. In addition to these salient facts, upon one lot there were improvements, and the tax upon these improvements was charged against all the land. In People v. Morse, 43 Cal. 534, it was held that an entire block or a half block owned by a single individual might be assessed in one parcel, and this notwithstanding the blocks were divided into lots, and in sound reason there is no more cause for assessing a block of land owned by one party in lots, than there is in assessing a section of land owned by a single individual in eighty or one hundred and sixty acre tracts. The land involved in this litigation consisted of five lots, with a frontage of twenty-five feet each, adjoining, and all belonging to the defendant Miller. A livery stable was situated upon these lots, and extended over and upon each of them. Upon such a state of facts we are clear that for the purposes of taxation the entire five lots should be held to be but a single parcel of land, and so assessed. With a building resting upon them all, any other kind of assessment would be improper. To divide the improvement into fifthsj and assess an undivided one-fifth thereof upon each lot, would be a practice not contemplated by the law. To hold that the statute requires that the land upon which the Palace Hotel of this city, or any other large building, is situated should be assessed by lots, and the improvements assessed and apportioned in undivided parts to each lot, would be to declare an absurdity existing in law, where there is no reason whatever for it. The case of Weaver v. Grant, 39 Iowa, 294, is directly in point upon this question, and by its syllabus declares: “The use and nature of the property must determine whether or not several lots assessed to one owner and sold en masse should be regarded as one lot. Where two lots were occupied and used for one purpose, the buildings being partly on each, it was held that they might be sold for taxes together.”

The board of directors of the district is empowered by section 22 of the act to levy assessments to pay interest upon the bonded indebtedness, and by section 33 the board of directors is also authorized to levy assessments for special purposes therein named. Upon October 1, 1889, the board passed the following order and resolution:

“ Whereas, the assessment-roll of Central Irrigation District for the year 1889-90 has been completed and the assessment on the property mentioned therein equalized, and there being two hundred and ninety-two bonds of the district of the par value of five hundred dollars each now outstanding on which the annual interest from July 1, 1889, to July 1, 1890, aggregates the sum of eight thousand seven hundred and sixty dollars, it is by the board of directors of said district now here ordered that an assessment sufficient to raise the annual interest on the aforesaid outstanding bonds and to defray the expenses of the care, operation, management, repair, and improvement of such portions of the canal and works as are completed and in use, including the salary of officers and employees, be, and the same is hereby, levied and ordered collected on each one hundred dollars on the assessed valuation of the property of the Central Irrigation District for district purposes as aforesaid, for the second fiscal year 1889-90, as follows, to wit: For bond fund, thirty cents; for general fund, twenty cents; total assessment, fifty cents on each one hundred dollars.”

It is now claimed by defendants that the aforesaid order is void upon the ground, that a double levy, or a levy for a double object and purpose, is joined in one order of the board. There is nothing in this objection. It is plainly apparent from the order what action was taken by the board. There was no reason why a levy for two different objects could not be incorporated in one order, and here the amount and character of each levy is fully and clearly set forth.

It is claimed that the levy for special purposes was in excess of the power of the board, inasmuch as the electors of the district at an election held for that purpose had not authorized the board to make it. It is conceded that if no election was held that fact would be fatal to the validity of this levy. (Tregea v. Owens, 94 Cal. 317.) But defendants offered no evidence whatever upon the question of an election, and, plaintiff having established a prima facie case by the introduction of his deed, in the absence of other evidence we are bound to assume that an election as authorized by law was held, for the deed is made by statute prima facie evidence that the assessments were levied in accordance with law.

It is claimed that the order of the board of directors in making the levy contains no recital that an election had been previously held, and therefore it must be assumed that no election was held. While it is true that the election is a condition precedent to the making of a valid levy by the board, yet there is no statute requiring the order of levy to recite the fact of a previous election, and, on principle, there is no reason why it should do so. If such recital was contained in the order it would not be conclusive upon the owner of the land assessed. He could still go behind it and show its falsity. It is the fact of the election, and not a statement in the order that an election was held, which give the board power to make the levy. Unless some pr sion of law required such a recital to be set out i order making the levy, the absence of it is no ev that an election was not held authorizing the board act in the premises. Although the election is a condition precedent to the making of the levy, there are many other conditions precedent of equal importance and gravity, as that the property must be assessed as required by law, or the property must be equalized as required by law. No levy would be valid unless these things were done; yet a recital of them in the order would not conclude inquiry as to the truth or falsity of the recital. These views are fully supported by People V. Hagar, 49 Cal. 229. Counsel cite a few Michigan cases as supporting his contention. We think they fail to reach the mark, but, aside from that, there is no such rule of law.

It is insisted that the collector’s deed, when offered in evidence by plaintiff, should have been rejected as invalid upon the ground that the assessment of the entire five lots as one parcel of land rendered it void. We have disposed of this objection in discussing the first proposition advanced. A great portion of the examination of the witness Welch related to the manner and character of the assessment of other property situated within the district. Such evidence was clearly objectionable as immaterial, and, as to the other matters upon which he was questioned, we see no error in the record.

The complaint in this case is the simple and ordinary complaint in ejectment. The answer contains a denial of ownership, and, among other things, alleges that the assessment was fully paid and discharged prior to the sale. At the trial evidence was introduced upon this question of payment, and defendants now claim that the allegation in the answer of payment created a material issue, and that the trial court has failed to make any finding of fact thereon. This contention is unsound. The allegation of payment is not a material allegation in the ^ding. Payment or nonpayment was a mere matter ‘dence. Under the general denial defendants were i to prove payment of the assessment, and, such ,mg the fact, the allegation was not material or necessary. Plaintiff introduced Ms deed, and thereby established the fact prima facie that the assessment was not paid. It was a material part of his case to show nonpayment, and he showed it by an introduction of the deed. When the court made a finding of fact that plaintiff was the owner of the land it necessarily followed that the deed was a valid deed; and, finding that the deed.was a valid deed and carried title, it necessarily found as a fact that the assessment had not been paid prior to the sale. Ownership was the ultimate fact to be tried, and, under a general denial, defendants might prove any fact going to show that plaintiff had no right of entry at the commencement of the action. The allegation of the answer that defendant had paid the assessment, and all other kindred allegations contained in the answer, only amounted to a denial of plaintiff’s title.

For the foregoing reasons the judgment and order are affirmed.

Harrison, J., McFarland, J., Temple, J., and Henshaw, J., concurred.