Fox v. Townsend

HENSHAW, J.

Plaintiff sued to quiet title to certain lots of land, claiming title thereto under and by virtue of certain tax-sales to the state of California and deeds from the state of California to him. The court gave its decree against the claim of plaintiff, and he appeals from the order denying his motion for a new trial.

One of the lots in question was lot 19 in block 26. The assessment of this lot, upon which the tax-sale was based, shows that there was no dollar-mark, or other mark, sign, word, abbreviation or explanation on the assessment-roll to indicate what was meant by the figures in the column designed to show the value of the property and the amount of the taxes. This being the case, the assessment was void, and the sale and. deeds made thereunder are likewise void. (Hurlburt v. Butenop, 27 Cal. 54; Braly v. Seaman, 30 Cal. 611; People v. S. F. Sav. Union, 31 Cal. 132; People v. Hastings, 34 Cal. 571; Emerick v. Alvarado, 90 Cal. 444, [27 Pac. 356].) This omission appearing in the assessment itself necessarily invalidates the proceedings. In this respect this case is to be distinguished from the case of Carter v. Osborn, 150 Cal. 620, [89 Pac. 608], where the omission of the dollar-mark or sign was in the delinquent list and not in the assessment. The decree as to lot 19, block 26, was, therefore, correct.

The other lands whose titles are in controversy are lot 17, block 20; lot 17, block 24; and lot 11, block 5. The assessments of these lots were in all vital respects the same as the assessment set forth and discussed in Baird v. Monroe, 150 Cal. 560, saving only that instead of being described as “in Pellissier Tr.,” they were described as “in Electric Railway Homestead Assn. Tr.” As in Baird v. Monroe, a map of the Electric Railway Homestead Association, recorded in book 14, page 17, of Miscellaneous Records of the County of Los Angeles, was introduced in evidence, which map showed the location of the lots in controversy. The assessments, therefore, in this respect, are identical with that discussed in Baird v. Monroe, and, aided by the map which was introduced in evidence, the descriptions contained in these assessments were “sufficient to identify” the land. (McCullough v. Olds, 108 Cal. 529, [41 Pac. 420].)

Certain propositions are urged against the validity of the deeds made by the tax-collector to the state. Section 3776 of the Political Code provides for a certificate of sale and declares what that certificate must contain. Section 3785 provides for a deed from the tax-collector to the state when the time for redemption has expired, and sets forth what such deed must contain, the recitals being identical with those called for in the certificate of sale. Section 3786 declares that “the matters recited in the certificate of sale must be recited in the deed. ’ ’ By reason of legislative oversight, there was at the date of these sales no law providing for the issuance of certificates of sale. It is contended that, as there was no law for a certificate of sale, there could in these deeds be no compliance with the requirement of section 3786, to the effect that the deed must contain a recital of the matters contained in the certificate. To this, however, it must be answered that when the law requiring a certificate was repealed, there fell with it the requirement that the deed must contain the matters recited in the certificate. Moreover, section 3785 requires in the deed a recital of all the matters and things which the certificate contains, and those matters were in fact fully set forth in the deed. The only imperfection that can be charged in this regard was an imperfection in stating the time when the right of redemption had expired. But this irregularity was cured by the confirmatory act of February 28, 1903, fully discussed in Baird v. Monroe.

Certain correction deeds were made by the tax-collector to the state, and it is urged that these deeds were without authority and void. The general principles governing such correction deeds are well settled. When a tax-deed does not conform in its recitals to the facts, the officer is authorized to execute a second and corrected deed, but he has no power to execute a second deed which shall misstate the facts respecting any proceedings prior to its execution. Such a deed would be void. The power and the duty of the proper officer is not exhausted by the execution of an irregular or imperfect tax-deed. (Douglas v. Nuzen, 16 Kan. 515; McCready v. Sexton, 29 Iowa, 356, [4 Am. Rep. 414]; Woodman v. Clapp, 21 Wis. 530.) Section 3805b of the Political Code, dealing with the subject of misstatement of facts or clerical errors occurring in the tax-collector’s deeds, declares that these may be corrected by the tax-collector upon an order of the board of supervisors entered upon its minutes directing correction, by the issuance of a new or amended tax-deed. If, as respondent here contends, such an order of the board of supervisors was necessary and was not made, it was incumbent upon him to have shown it. As the record is here presented, the presumption will be that the deeds were executed by the officer under proper direction and authority. Moreover, these correction deeds seemed to have been made for the sole purpose of making a more certain statement of the time when the right of redemption had expired, and for the reasons above given the original deeds themselves were sufficient upon this point. Nor do we perceive any force in the objection that the correction deeds to the state were made after the state had parted with the title. No reason is discernible why the state, like a private individual, may not obtain a proper correction deed for the betterment of the title to property which it has conveyed, and, if this be done after conveyance, why, as in the case of an individual, it should not serve to perfect the title granted.

The deed contained a description of the property as “situate, lying and being in the County of Los Angeles, State of California, and described thus: Mortgage interest in the following described property, Electric Ry. Homestead Association Tract, lot 17, block 24.” It is contended that the deed here purports to convey only a mortgage interest in the lot, without any explanation, and that the deed is, therefore, void. But article 13, section 4, of the constitution declares that a mortgage for the purposes of assessment and taxation shall be deemed and treated as an interest in the property affected thereby.” The further recitals in the tax-deed make this case parallel with that of Doland v. Mooney, 72 Cal. 34, [13 Pac. 71], where such a deed was held to be sufficient. This property was sold for taxes for the year 1894. It is objected that upon the assessment-book for 1895 there was not stamped an entry of the fact “that said lot had been sold for taxes, and the date of such sale, ’ ’ as required by section 3801 of the Political Code as it read in 1895. Only the words, “sold to the state,” were so stamped. But it is the assessment and sale for taxes for 1894 which are involved in this case, and a clerical misprision of the year after cannot affect the validity of such proceeding. Moreover, if the purpose of the requirement is to give notice to the fiscal officers, certainly a notice, “sold to the state,” is sufficient to put them on inquiry, and the same is true if it be said that the requirement was designed to give notice of the sale to the owner.

For the foregoing reasons the order refusing to grant a new trial was proper as to lot 19, block 26, and the judgment stands affirmed as to this lot. The order is reversed as to lot 17, block 20; lot 17, block 24; and lot 11, block 5.

Lorigan, J., Angellotti, J., Shaw, J., McFarland, J., and Sloss, J.5 concurred.

An application for a rehearing having been made, the same . was granted and the foregoing judgment set aside as to the defendant and respondent Robert A. Carter, and the property-claimed by him. Subsequently, on the 20th of September, 1907, the following opinion was rendered by the court in Bank, denying the plaintiff’s motion for a new trial as to the defendant Carter and the land claimed by him:—