Bank of Lemoore v. Fulgham

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] When this case was in Department it was decided without reference to the Curative Act found at page 63 of the statutes of 1903. This was so because the briefs made no mention of, and placed no reliance upon, the provisions of that act. In Baird v.Monroe, 150 Cal. 560, [89 P. 352], this act and its effect are considered. It is held to be constitutional and to relieve tax certificates and deeds from the irregularities and informalities enumerated.

Consideration of the case at bar must, therefore, be had in the light of this Curative Act.

Plaintiff's appeal is from a judgment in favor of defendant and from an order denying its motion for a new trial. The action was tried for the purpose of quieting title to certain real property situated in Tulare County. Plaintiff claims title as the successor in interest of George H. Davis, who, it is conceded, was on the first Monday of March, 1896, the owner of the property. Defendant deraigns title under a sale to the state for delinquent taxes, and the subsequent deed to him from the tax-collector, dated October 1, 1903. Various objections are made by the appellant to the validity of the proceedings, which were held by the trial court to have vested title in the defendant. But preliminarily plaintiff interposed a demurrer to defendant's answer, and urges that the demurrer should have been sustained.

The demurrer was both general and special. The general demurrer was properly overruled. The answer denied plaintiff's allegation of ownership and thus raised a direct issue upon this matter. Defendant filed his supplemental answer, and there undertook to set forth in detail the nature of his title. While there may be some foundation for the criticism that the pleading in this regard is somewhat ambiguous or uncertain, there was no such ambiguity or uncertainty as to have prejudiced plaintiff in meeting the issues which the answer tendered. It is plain therefrom that defendant was relying upon the tax title and nothing else. Even an error in overruling a demurrer upon the ground of ambiguity, uncertainty or unintelligibility, is not reason for reversal, if it appears that the demurring party was not misled by the defects in the pleading and that the cause was fairly tried upon its merits. (Alexander v. Central L. and N.Co., 104 Cal. 532, [38 P. 410]; Jager v. California Bridge Co.,104 Cal. 542, [38 P. 413]; Stephenson v. Deuel, 125 Cal. 656, [58 P. 258].)

Coming thus to the specific objections urged against the sufficiency of the tax-deed, the published notice of sale declared that unless the taxes, with costs, etc., were paid, the property would be sold to the state on the eighteenth day of June, 1897, and the sale actually took place on that day. The first publication of this notice was made upon the twenty-eighth day of May, 1897. Section 3767 of the Political Code provides that the sale must not be less than twenty-one nor more than twenty-eight days from the time of the first publication. It is insisted in this case that the sale was premature. But as the sale did not take place until the twenty-first day, excluding the day of publication, it must, under section 12 of the Political Code, and the decisions of this court upon the matter, be held to have taken place in accordance with the requirements of the statute. (Hannah v. Green, 143 Cal. 19, [76 P. 208]; Misch v.Mayhew, 51 Cal. 514; Wilson v. His Creditors, 55 Cal. 476; Dean v. Grimes, 72 Cal. 442, [14 P. 178].)

The certificate of sale which was offered in evidence recited that the amount of the tax levied on the property was $19.20 and that the "penalties, costs and charges which have since accrued thereon amount to the further sum of $ _____." It is urged that the amount for which the property was or should have been sold is thus not stated, but there were further recitals that the sale was made to the state, "for the amount of said taxes of every kind charged against said property, and penalties, costs and charges, to wit: the sum of $20.66." There was sufficient evidence in the certificate to show that the penalties, costs, and charges in view of the statutory provisions of the Political Code governing such charges, costs, and penalties were $1.46, — the difference between the amount of the tax as stated, and the amount of the tax with added penalties, costs, and charges for which the property was sold. The only amount which is required to be stated is "the amount . . . of the assessment" (Pol. Code, sec. 3776), and this was stated. It did not invalidate the certificate if it failed to separately set forth the amount of the penalties, costs, and charges.

The description of the property in the certificate and deed was as follows: "Situate, lying and being within the said county of Tulare, state of California, and described thus: S. 1/2 of N. 1/2 sec. 13 T. 19 S.R. 23 E." It is urged that this description was insufficient to identify the property for its failure to state the base and meridian. But as the property was described as in the county of Tulare, there was but one piece of land which, by any possibility, could have answered this description, and the failure to name the meridian was unimportant in view of this fact. A court takes judicial notice of the system of surveys prevailing in the state. (Harrington v.Goldsmith, 136 Cal. 168, [68 P. 594].)

The error in the certificate in fixing the date when the five years' period of redemption would expire is cured by the Curative Act of 1903, above referred to. (Baird v. Monroe, 150 Cal. 560, [89 P. 352].) In fact, the sale by the state did not take place until after the full five years' period had elapsed.

The deed conveyed the real property "with appurtenances, etc." There was by this no more conveyed than was assessed or included in the certificate of sale. The fact that appurtenances were named in the deed would not convey more property nor less than if the word had been omitted. (Pellissier v. Corker, 103 Cal. 516, [37 P. 465]; Williams v. Harter, 121 Cal. 47, [53 P. 105];Sparkes v. Hess, 15 Cal. 186.)

Section 3680 of the Political Code provides that whenever property has been sold for taxes, and remains unredeemed, upon each subsequent assessment the assessor must enter the fact that the property has been sold for taxes, and the date of the sale, and upon all bills or statements there must be written or stamped the words "Sold for taxes" and the date of sale. This memorandum was not made. The parties paying the subsequent taxes did not receive this notice that the property had been sold. It is urged that this was a notice which the law required to be given to the owner of the property, and that a failure to give this notice amounted to a deprivation by him of his property without due process of law, since the law had provided this means of notice. But section 3787 of the Political Code makes the deed from the state conclusive evidence upon this matter. Of course, it is true that the legislature has not the power to make such a certificate or deed conclusive as to any of the essentials of the listing, valuation, apportionment, or notice (Cooley on Taxation, pp. 355, 356; 1 Blackwell on Tax Titles, sec. 640), but it can make the certificate or deed conclusive as to matters or things which in the first instance the legislature might not have required to be done, and which are in their nature, therefore, nonessentials. The notice here under consideration differs entirely from the notice of proposed sale given by publication — a notice designed to afford the property-owner protection, and enable him to pay his taxes before title shall pass from him. Such notice he is entitled to receive, and such notice in the case at bar he did receive. The requirement for the stamping upon the subsequent assessment or tax receipts of the words "Sold to the state," may have been designed to serve a twofold purpose — that of convenience to the fiscal officers, and of continued notification to the taxpayer that his property had been sold. But there is nothing in the law which makes the giving of such a notice essential — no rights of the taxpayer would be violated if such a provision for notice were not required at all, and therefore, as we have said, it is but a convenience and not a right which the legislature has provided for. It is quite within its power to do away with this provision, or, as here, to hold that the tax-deed shall be conclusive evidence that it was given.(De Treville v. Smalls, 98 U.S. 525; Rollins v. Wright, 93 Cal. 395, [29 P. 58]; Klumpke v. Baker, 131 Cal. 81, [63 P. 137, 676].)

Section 14 of article V of the constitution provides that "All grants and commissions shall be in the name and by the authority of the people of the state of California, sealed with the great seal of the state, signed by the governor, and countersigned by the secretary of state." It is contended that as the provisions of the constitution are mandatory and prohibitory, the scheme of the present revenue law, whereby the tax-collector makes, on behalf of the state and as its agent, the deed to the purchaser of such lands, is violative of this constitutional provision, and that, therefore, the deed is void. In answer to this it may be said that it is perfectly apparent from a reading of the constitutional provisions touching the public lands of the state, that lands, title to which might thus be acquired by the state for delinquent taxes, were never within its contemplation. Indeed, it is well settled that lands which originally have been part of the public domain, and have become subsequently private property, on reverting to the state or other sovereignty by escheat, forfeiture, or otherwise, are not within the purview of the general land laws relating to the disposal of public lands, but will require special authority for their disposition.(Governeur v. Robertson, 11 Wheat. 332; Carothers v. McLaren,56 Miss. 371; Baker v. Kelley, 11 Minn. 480; Magruder v. Esmay,35 Ohio St. 222; 2 Cooley on Taxation, p. 858.)

In consideration of the further fact that the state's power of taxation is a paramount power and a necessary incident of sovereignty, such lands may be disposed of in any way that is not, in and of itself, plainly violative of constitutional provisions.

For these reasons we conclude that the state had full power to make the tax-collector, or any other person, its agent and attorney in fact, for the passing of the legal title.

For the foregoing reasons the judgment and order appealed from are affirmed.

Shaw, J., Angellotti, J., Lorigan, J., McFarland, J., and Sloss, J., concurred.

Rehearing denied.

In response to the petition for a rehearing, Beatty, C.J., filed the following opinion on June 15, 1907: —