DocketNumber: Civ. No. 21615
Citation Numbers: 144 Cal. App. 2d 647
Judges: Ashburn
Filed Date: 9/25/1956
Status: Precedential
Modified Date: 1/12/2022
Appeal from order granting temporary injunction against tax sale. The central question is the effect of section 205 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 upon the period of redemption following a sale to the state for nonpayment of local taxes.
Said section 205 (50 U.S.C.A. App. § 525), as amended in 1942, provides: “The period of military service shall not be included in computing any period now or hereafter to be
Plaintiff acquired on August 17, 1940, the right of redemption of one Ellen B. Crowder who was owner of the subject property at the time of sale of same to the state in 1933 for nonpayment of local taxes for the year 1926-1927. (Pol. Code, § 3771.) Plaintiff also acquired title, or apparent title, through foreclosure of a street bond, the commissioner’s deed being dated September 26, 1939. He entered the military service in 1942 and has remained in the army ever since that time with the exception of a period extending from May 25, 1946 to July 10, 1947. Plaintiff partially redeemed the property under the five year plan (Bev. & Tax. Code Ann., §§ 4216-4226), paying $2,330.70 on March 16, 1946, and $2,471.54 on August 10, 1948, but has been unable to completely redeem, Although he furnished to the county tax collector an affidavit showing his inability to pay the balance due because of his current military service that officer gave notice of sale and threatened and intended to sell the said property at public auction on March 28, 1955. His hand was stayed by this suit for declaratory relief and injunction and by the ensuing temporary injunction now under review.
At the time of the sale to the state in 1933, section 3771a, Political Code, provided for sale by the state, and section 3780 said: “A redemption of the property sold may be made by the owner, or any party in interest, within five years from the date of the sale to the state, or at any time prior to the entry or sale of said land by the state, in the manner provided by section three thousand eight hundred and seventeen. ’ ’ Its successor is section 3707, Bevenue and Taxation Code: “If not previously terminated, on completion of any sale under this chapter the right of redemption is terminated.”
Both sides agree that the state statutes afford “an indefinite right to redeem after deed to the State and prior to disposal of the property by the State”; also that the paramount authority of the federal enactment gives it the effect of an amend
Appellants contend that the sale may proceed but that it does not actually terminate the redemption period. We cannot adopt that view. It is wholly inconsistent to say that the right of redemption cannot be terminated when the property owner is in the armed service but that a sale, which is specifically designated as the event whereby same is terminated, may be held at any time. There is no statutory provision for a redemption after sale by the state. As a practical matter such a holding as that invoked by appellant would present numerous problems in effectuating a redemption after returning from the service, problems as to amount to be paid, rate of interest, etc. Moreover it would be calculated to mislead any purchaser at the collector’s sale for the deed recites (per Rev. & Tax. Code Ann., § 3710): “That the real
The cited case of Day v. Jones, 112 Utah 286 [187 P.2d 181], is not opposed to the foregoing views. Under the Utah statute the resale by the county is not the event which terminates the redemption period; it expires automatically before the resale can be had. Moreover, the court affirmed the judgment in favor of plaintiff, the serviceman, because the sale to defendant had been made before the redemption period, as extended by the Civil Relief Act, had terminated.
Both sides rely upon Le Maistre v. Lefers, 333 U.S. 1 [68 S.Ct. 371, 92 L.Ed. 429]. Its holding is with respondent although some of its language is a bit obscure. It arose under the Florida statute which provided for public sale of tax delinquent land and issuance of a tax certificate to the purchaser (not the state); at any time after two years from the date of the certificate the holder had the right to apply for a tax deed, whereupon another public sale was had and tax deed issued. The owner had a right to redeem at any time after issuance of the certificate and before the tax deed had been issued. Pursuant to this statute a certificate was issued on August 5,1940, after sale of Le Maistre’s land. He entered the navy on August 18, 1942, and there remained until December 18, 1945, when he was discharged. The amendment to section 205 of the federal act (which covers the matter of enlarged redemption period) was made on October 6, 1942. Tax deed to petitioner’s land issued on March 1, 1943 and suit to set aside the deed was filed by him on March 25,
Arguments based upon section 500 of the act (50 U.S.C.A. App. § 560)
There was no error in granting the temporary injunction. Order affirmed.
Moore, P. J., and Fox, J., concurred.
This case is later than the Florida decision reviewed in Le Maistre v. Leffers, infra.
The matter of resale by the state is governed by the statute in effect at that time. (Anglo Calif. Nat. Bank v. Leland, 9 Cal.2d 347, 353 [70 P.2d 937]; Mercury Herald Co. v. Moore, 22 Cal.2d 269, 274 [138 P.2d 673, 147 A.L.R. 1111].)
§ 560. “ (1) The provisions of this section shall apply when any taxes or assessments, whether general or special (other than taxes on income), whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid.
“ (2) No sale of such property shall be made to enforce the collection of such tax or assessment, or any proceeding or action for such purpose commenced, except upon leave of court granted upon application made
“ (3) When by law such property may be sold or forfeited to enforce the collection of such tax or assessment, such person in military service shall have the right to redeem or commence an action to redeem such property, at any time not later than six months after the termination of such service, but in no ease later than six months after the date when this Act [said sections] ceases to be in force; but this shall not be taken to shorten any period, now or hereafter provided by the laws of any State or Territory for such redemption.
“ (4) Whenever any tax or assessment shall not be paid when due, such tax or assessment due and unpaid shall bear interest until paid at the rate of 6 per centum per annum, and no other penalty or interest shall be incurred by reason of such nonpayment. Any lien for such unpaid taxes or assessment shall also include such interest thereon.”