8 Cal. 384 | Cal. | 1857
Lead Opinion
This was a bill in equity, to restrain the defendant from selling certain lands in Mariposa county, for non-payment of taxes. The bill alleges two errors in the assessment; first—that the survey was made, and the patent issued to the grantor after the assessment; and, second—that the land is assessed as “ten square leagues,” and not by any specific boundaries.
In support of the first proposition, the case of Ballance v. Forsyth, 13 How. U. S. R., 24, is relied on. An examination of that authority, will show it has no application to the present case, because, by the act of Congress, admitting Illinois into the Union, it was specially provided, that lands sold by the United States, should not be liable to taxation until five years after the sale thereof, or after the issuing of the patent.
Without inquiring how far such an act would be constitutional,
The second error is untenable. The statute requires, that the assessment shall contain a list of the real estate, “ giving the quantity of acres in each tract, as near as may be possible, except in case of city or town lots, which may be described by reference to numbers and streets.”
To require a particular description of rural lands, would be imposing an unnecessary burden on the officer.
Before closing this opinion, we would observe, inasmuch as a . question of remedy was made, that since the decision of Dewitt v. Hayes, 2 Cal., the Legislature have so amended the law as to make a tax-deed prima facie evidence of what it contains; so that it is not necessary, as it formerly was, to introduce evidence of the regularity of the assessment, and all the proceedings under it, and we are. of opinion that this has changed the rule in reference to the right of a party to invoke the aid of a Court of Chancery, in a case where his property is about to be illegally sold for taxes, for, as the deed is prima facie evidence of title, and the error is in the assessment, the defendant would be driven to extraneous facts to show its illegality. There being no error patent upon the face of the proceeding, the deed being the only evidence necessary, would operate a cloud upon the title.
In Gaar v. Robinson et ah, this point was not called to the attention of the Court, and the case went off on the decision of Dewitt v. Hayes.
Judgment affirmed.
Concurrence Opinion
This was a proceeding to enjoin the sale of ten leagues of land, in Mariposa county, known as the Fremont grant.
This grant was, in the year 1855, listed for taxes by the assessor of said county, and its value assessed at five hundred thousand dollars.
By law, assessments were required to be made, and it is admitted this assessment was made between the first Monday of March and the first Monday of August, 1855. It is also admitted that the final judgment, confirming Fremont's grant, was rendered on the twenty-seventh day of June, 1855; .that, pursuant to said judgment, a segregation of the land from the public domain was accomplished, by a survey, on the thirty-first of July, 1855, and that, in default of the payment of taxes assessed as above, the defendant, who was sheriff and ex officio tax-collector
The appellant insists: First, that prior to the thirty-first of July, 1855, plaintiff had only an equitable right to have the ten leagues of land, within certain limits, located and set apart to him by the United States, and that, until the segregation was actually made, he was not the owner of any specific body of land, subject to be assessed for taxes.
Second, that an assessment is an estimate of value, made by an officer sworn to exercise his judgment fairly, and to do this, it is necessary that he should know quantity and quality of the land, which, in this case, could not have been known to the offi-, cer before the survey, as the ten leagues were included in a much larger tract, on"e portion of which was worthless, and the other immensely valuable.
The first point contended for is in direct conflict with the decision of the Supreme Court of the United States, in the case of Fremont v. United States. It was then held that the grant, under which plaintiff claims, conveyed not merely an inchoate, or equitable, but a legal title, which vested in the grantee a present immediate estate in fee. 17 Howard, 542.,
By our Revenue Law, all property within the State, of whatever description, owned by an individual or private corporation, is subject to taxation; and if plaintiff was the owner of land within the State, he cannot escape duties which such ownership imposes. But, if we admit the correctness of both points contended for, it does not necessarily follow that the assessment is illegal. The precise time at which it was made is not shown; it is, however, admitted to have'been between the first Mondays of March and August. It is not denied that, immediately upon the segregation of the land from the public domain, the legal title vested in plaintiff, and the land was subject to taxation. This occurred on the thirty-first day of July, which was Tuesday. Excluding the day on which the survey was made, and the fifth day of August, (which was Sunday,) four days intertervened between the survey and the first Monday of August, on any one of which an assessment could have been legally made, and, in the absence of any evidence to the contrary, we must presume that the officer properly performed his duty, and that the assessment was subsequent to the survey.
For these reasons, in addition to those contained in the opinion of the late Chief Justice, the judgment is affirmed, with costs.
