Mayo v. Haynie

50 Cal. 70 | Cal. | 1875

Concurrence in Part

Mr. Justice Crockett delivered the following dissenting opinion, in which Mr. Justice Rhodes concurred:

Section forty-five of the Revenue Act of May 17, 1861, in defining the effect of a tax deed, provides that “any deed derived from a sale of real property under this act shall be conclusive evidence of title, except as against actual frauds or prepayment of the taxes by one not a party to the action or judgment in or upon which such sale was made.” The act apparently contemplated that in an action to enforce the lien on real estate for delinquent taxes, the owner or person to whom the land was assessed, should be named as a defendant in the complaint, or at least served with process in the action. Hence, the provision in section forty-five that the tax deed should not be conclusive as against one not a party to the action who had prepaid the tax. It evidently contemplated that there might be cases in which a person who had paid the tax would not be a party to the action, and therefore would not be bound by the judgment. But by the amendment of May 12, 1862 (Stat. 1862, 520), it was provided that an action to enforce the lien of the tax might be prosecuted in rem against the real estate alone; “ and such action may, at the option of the district attorney, also proceed against any and all persons or corporations who are under obligations to pay the tax or taxes.” It was also provided that the “summons need not name any particular defendant, but may be directed to all owners of the property described” in the summons. Provision is then made for service by publication and posting of notice; and section five provides that as against the real estate and “each and every person and corporation claiming or having any right, title or interest, either legal or equitable, in any of the property described in the summons,” the posting and publication of notice shall “be equivalent to a personal service of summons upon each and every such person and corporation, and shall ,bind the interest of every owner and claimant thereof, whether such owner or claimant is named as a party to such action or not.” Section six provides that after the publication and posting, whether an answer be filed or not, the court “shall have the same jurisdiction, and the judgment and decree of the court shall have the same effect, as if every owner and every claimant of any right, title or interest, either legal or equitable, in any part of the real estate or improvements described in the summons, had been made defendant in such action, and duly and personally summoned to appear and answer the complaint.” By the first section of the amendatory act of April 4, 1864 (Statutes 1863-4, 399), it is provided that a recital in the judgment or decree “that all owners and claimants of the property have been duly summoned to answer the complaint, and have made default, shall be proof of these facts.” These stringent provisions leave no room for doubt that the action might be strictly a proceeding in rem against the property. It was for the Legislature to determine the method of giving notice to owners and claimants of the pending of the action; and if hardships shall result from the inadequate method employed, the fault is in the statute. It is equally clear that these provisions of the amendatory acts are inconsistent with section forty-five of the act of 1861, and by necessary implication repeal it. In this ease, the action to enforce the lien was in due form, and it has not been suggested that there was any irregularity in the posting or publication of notice. The decree recites that all owners and claimants had been duly served, and had made default; and one of the points determined by the judgment was that the tax was due and unpaid. Under the provisions of the statute above quoted, the defendant must be deemed to have had notice of the action, and to have made default. Whatever defense he might have made, is concluded by the judgment. The plaintiff was a purchaser in good faith and for a valuable consideration, and the proceedings in the tax suit were regular on their face.

I think the case comes within the principles settled in Eitel v. Foote, 39 Cal. 440; Truman v. Robinson, 44 Cal. 623; Jones v. Gillis, 45 Cal. 541; Reeve v. Kennedy, 43 Cal. 643; Stokes v. Geddes, 46 Cal. 17.

I therefore dissent from the opinion of the majority of the Court.

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Lead Opinion

By the Court, McKinstry, J.:

The forty-fifth section of the Revenue Act of 1861 has never been directly repealed, nor do I think that it is repealed by necessary implication. There is no other provision in the original statute or in the amendments which defines the effect of a tax deed. It is not necessary to express an opinion whether a tax deed can be made conclusive evidence against anybody. The deed cannot be held to have an effect and operation which the law says it shall not have; cannot be held conclusive to establish title in a plaintiff against one not a party to the action brought to condemn the land, who has actually paid the tax. Nor can the judgment in the action in rem be held to enlarge the operation of the deed beyond the limitations of the statute, because the statute gives no such effect to the judgment. It cannot be contended that the plaintiff could have recovered in the present action, without introducing the deed; having introduced the deed, he can claim for it no greater effect than the law confers upon it.

Judgment and order affirmed.