113 Cal. 238 | Cal. | 1896
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 dupli
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
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
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 neces
For the foregoing reasons the judgment and order are affirmed.
Harrison, J., McFarland, J., Temple, J., and Henshaw, J., concurred.