88 P. 903 | Cal. | 1907
The plaintiff brought this action to quiet title to certain land in Mendocino County. The defendants answered, denying the plaintiff's title, and filed cross-complaints setting up title in themselves and praying that their title be quieted against the plaintiff. Judgment went for the defendants, granting them the affirmative relief sought by them. The plaintiff's motion for a new trial was denied, and he now appeals from the judgment and from the order denying his motion for a new trial.
Defendants are the heirs and successors in interest of W.H. Johnson, and it is admitted that they are the owners of the land, unless W.H. Johnson's title was divested by certain tax proceedings culminating in a deed from the state of California to the plaintiff. The land in question was assessed to W.H. Johnson for the year 1893, and was sold to the state for non-payment of taxes on July 7, 1894. The tax-collector executed a deed to the state on July 7, 1899, and a deed was executed to the plaintiff by the tax-collector, acting under the authorization of the state controller, on May 3, 1902. On account of some irregularities in the original deed to the state, an amended deed to the state was executed on April 8, 1902. (Pol. Code, sec. 3805b; Stats. 1901, p. 651.)
At the trial the defendants interposed various objections to the introduction in evidence of these instruments. The objections were sustained, and the appellant upon the appeal from the order denying his motion for a new trial seeks to review these rulings. If any of the objections made was good, the evidence of the tax proceedings was properly excluded. We are satisfied that the respondents are correct in their contention that there is at least one fatal objection to the validity of the tax-deeds to the state, and it will be unnecessary, therefore, to consider the other objections. In 1894, when the sale of the property was made, the Political Code provided that if property sold for non-payment of taxes was not redeemed within the time allowed by law the tax-collector must make to the purchaser, or his assignee, a deed of the property; providing, however, that such purchaser, or his assignee, must, thirty days previous to the expiration of the time for such redemption, or thirty days before he applies for the deed, serve upon the owner of the property, or upon the person occupying it, a written notice showing, among other things, *203
when the right of redemption will expire, or when the purchaser will apply for a deed. And it was provided that no deed should be issued by the tax-collector until this notice should have been given, and an affidavit filed with the tax-collector showing that it had been given. (Pol. Code, sec. 3785, amended 1891; Stats. 1891, p. 134.) Section 3780 of the same code provided that a redemption might be made by the owner or any party in interest within twelve months from the date of the purchase, or at any time prior to the filing of the affidavits and the application for a deed, as provided for in section 3785. (Stats. 1891, p. 133.) As the law then stood, a deed could not be issued to the purchaser without the giving of the notice required by section 3785 (Hughes v. Cannedy,
In the case at bar there was no proof of any such notice having been given, and it would follow, if the case is to be decided on the law as it existed when the sale was made, that the plaintiff failed to establish that any title ever passed from W.H. Johnson to the state.
The appellant contends, however, that the validity of the deed is to be determined by the provisions of law existing at the time such deed was made, rather than at the date of sale. Between 1894, when the sale took place, and 1899, when the deed was executed, the law relating to redemption from tax-sales and the execution of tax-deeds was materially altered. In 1895 the legislature passed a series of amendments to the Political Code, changing the entire scheme of tax-sales. Since 1895 it is provided that all property sold for delinquent taxes shall be sold to the state, and no sales to private purchasers are permitted, as they were prior to the time of these amendments. (Pol. Code, sec. 3771; Stats. 1895, p. 377.) By section 3785, as then amended, the tax-collector is required to make a deed to the state if the property is not redeemed *204 within the time (five years) allowed by law for its redemption. The provision for notice of intention to provide for a deed was eliminated from section 3785. Section 3780 was at the same time amended so as to provide that a redemption might be made within five years from the date of the purchase, or at any time prior to the entry or sale of the land by the state. And the land became subject to such entry or sale immediately upon the filing of the tax-collector's deed with the proper officer. (Pol. Code, sec. 3788, 3897.)
To apply section 3785, as amended, to sales made before the amendment went into effect, would undoubtedly give the amendment a retroactive effect. Whatever may be the general rule as to construing sections of the code so as to prevent their having a retroactive effect (Pol. Code, sec. 3), the legislature has, in this instance, declared plainly its intent that the amendment to section 3785 should apply to all tax-deeds thereafter made, whether or not the sale had already taken place. It appears that the legislature in 1895 enacted two different amendments to section 3785 of the Political Code. They are substantially similar so far as the points already noted are concerned. One was approved February 25, 1895, and the other March 28, 1895. The latter, after setting forth the provisions for the making of a deed by the tax-collector to the state, in the event the property is not redeemed within the time allowed by law, contains the following language: "In all cases where land has heretofore been sold to the state for delinquent taxes, the deed therefor shall be made to the state within one year after this act takes effect; provided five years shall have elapsed after the date of such sale." In view of this provision it cannot be doubted that the legislature intended to make and did make section 3785 apply to cases of sales made prior to the adoption of the amendment, and such amendment must therefore be given a retroactive effect, unless some constitutional right would be violated by giving it such effect.
Ordinarily "the right of redemption from a tax-sale must be governed by the law in force at the time of the sale; it cannot be affected by subsequent legislation." (Black on Tax Titles, sec. 175.) In Teralta Land etc. Co. v. Shaffer,
We think the principle of Teralta Land etc. Co. v. Shaffer,
Again, the rights of the owner are injuriously affected in another respect if the amendment is permitted to operate on past sales. Under the old law, not only does his right to redeem continue until after he has received the statutory notice, but no deed can issue to the purchaser until such notice has been given. By the amendment, the state receives its deed at once on the expiration of the five years. Such deed, when duly acknowledged or proved, is primary evidence of the regularity of the assessment, of the equalization, of the levy of taxes, of the non-payment of taxes, of the sale, of non-redemption, of the execution of the deed by the proper officer, and is conclusive evidence of the regularity of all other proceedings from the assessment to the execution of the deed. (Pol. Code, secs. 3786, 3787.) Furthermore, such deed transfers to the state "the absolute title to the property described therein." (Pol. Code, sec. 3787.) It is not necessary here to decide whether or not the legislature has the power to alter the rules as to burden of proof of facts recited in deeds already executed — a question on which the authorities are in conflict. (See Strode v. Fisher,
There is a marked distinction between this case and Oullahan v.Sweeney,
Inasmuch as the plaintiff failed to prove the giving of the required notice, neither deed operated to convey W.H. Johnson's title to the state, and all of the instruments offered by plaintiff were properly excluded. This disposes of the appeal from the order denying a new trial.
On the appeal from the judgment it is urged that the court erred in granting to the defendants the affirmative relief asked by them in their cross-complaints. This contention is based on the view, expressed several times by this court, that in an action to quiet title a cross-complaint by a defendant who claims title in himself is not necessary. (Wilson v. Madison,
The judgment and order appealed from are affirmed.
*209Angellotti, J., and Shaw, J., concurred.