29 Cal. 326 | Cal. | 1865
This is an action to recover a tract of land in San Francisco. The plaintiff offered in evidence a tax deed executed upon a sale made for taxes for the fiscal year ending June 30th, 1861. Objection was made to its introduction on the ground that it was defective in numerous specified particulars required by the statute to be stated in a tax deed, and on other grounds. The objection was sustained, and the deed excluded. The plaintiff having no other title, judgment was rendered against him. A motion for new trial having been made, and denied, plaintiff appeals from the order denying the motion, and from the judgment.
The only objections to the introduction of the tax deed worthy of consideration are those relating to its sufficiency under the statute. Since the trial of this case in the District Court, the case of O'Grady v. Barnhisel, 23 Cal. 287, has been finally decided on petition for rehearing, in which a deed differing somewhat in form and minor details, yet in all essential particulars similar to the one in question, was held to be sufficient. That case was twice thoroughly argued before our predecessors, and the judgment had the concurrence of four Justices, there having been a change in one of the members of the Court between the first and second decisions. We do not feel called upon to reinvestigate the questions determined in that case.
The motion for new trial, made since the decision in O'Grady v. Barnhisel, was denied on the authority of Moss v. Shear, 25 Cal. 38, upon the supposition that the tax for which the sale in question took place, was levied under section sixty-four of the Revenue Act of 1854, construed in that case. The learned Judge evidently overlooked one or two of the numerous amendments and changes in the revenue laws made since 1854. Section fifty-five of the Act of 1857 repeals in express terms “ sections fifty-nine to sixty-six, inclusive * * * of an Act passed on the 15th of May, 1854, entitled ‘ An Act to provide revenues,’ ” etc. (Laws 1857, p. 344, Sec. 55.) The tax in question was, therefore, not levied under sections sixty-four and sixty-five of the Act of 1854, but under the Act of 1857, as further amended by the Act of 1859. Section three of the Act of 1857, as amended by section two of the Act of 1859, contains a provision designed to obviate the questions involved in Moss v. Shear, which provision is as follows: “Provided, all real estate and personal property shall be assessed to a person, firm, corporation, association or company, as herein provided, if any owner or claimant shall be known to the Assessor, and to all owners and claimants of any interest, present or future therein, or any lien upon the same, and no error in regal’d to such owner or claimant shall in anywise affect the validity of such assessment.’’ (Laws 1859, p. 346, Sec. 2.)
And to carry out this idea, and as a still further guard against an escape through a defective assessment even under this stringent provision, section twenty-three was also amended so as to read as follows: “ The matters directed by section eighteen to be substantially recited in the tax certificate, and by section twenty-two in the deed, shall be deemed, and they are hereby declared to be, all the requisites essential to the validity of sales made for taxes—and a deed, made in conformity with the requirements of section twenty-two, shall convey to the grantee the absolute title to the lands described in said
It would seem, that, if there is any possibility of obviating by means of human language the force of appellant’s criticisms upon the assessment “ to Murphy and Dooley, and to other known and unknown owners and claimants,” the Legislature has accomplished it in these provisions. If not, that body may well despair of accomplishing the desired result, and Assessors may also despair of ever making an assessment that will stand the test of judicial scrutiny.
Description in tax deed.
A point is also made, as to the sufficiency of the description in the deed. It is claimed to be void for uncertainty. The description complained of is not the one contained in the assessment roll, which is also introduced into the deed. The description of the property assessed is apparently accurate and definite. But one side of the part sold is said to be indefinite, as it is bounded on that side by lands assessed to other parties. The starting point is fixed with precision, and the length and direction of the first line given. The second line runs “thence at right angles southerly to land assessed to Murphy and Dooley, and also to J. P. Holden.” It must be presumed that the parties understood at the time of the bidding what lands were then designated as being assessed to Murphy and Dooley, etc., and the description may be applied to the land sold, if necessary, by extrinsic evidence. Whether this description would have been sufficient or not for the purposes of an assessment, we think it prima facie sufficient for the purpose of indicating the portion of the land sold, which had already been properly assessed.
We think the Court erred in excluding the deed.
Judgment reversed and new trial ordered.
Mr. Justice Currey and Mr. Justice Rhodes dissented.
