People v. Pearis & McDonald

| Cal. | Jul 1, 1869

By the Court, Sprague, J.:

The demurrer to the complaint was well taken, and should have been sustained upon the point that it does not appear from the complaint that the property assessed or assumed to have been assessed is within the County of El Dorado, or within the Revenue District where assessed.

It further appears from the complaint that the property was all assessed by the Township Assessor of Placerville Township; that it consists of personal property and two distinct parcels of real estate, but one parcel of which is alleged to be in Placerville Township; and it is not alleged and does not affirmatively appear that such township is in the County of El Dorado, the county in which the assessment is alleged to have been equalized.

Assuming the demurrer to have been properly overruled and the complaint sufficient, the plaintiff was entitled to judgment on the pleadings against the individual defendants and the real estate, as prayed for, as the denial of the defendants that they were, at the time of the assessment, the owners of the property described in the complaint, or any part thereof, is not such denial as would raise an issue as to whether the property was properly assessed to them, and is not such a denial as they are permitted by the statute to make. The third subdivision of section forty-two of the Revenue Act permits the defendant in a tax suit to deny all claim, tille, or interest in the property assessed at the time of the assessment. The defendants’ answer may be literally true, yet they may have had some claim thereto or interest therein, and may have been in the possession, charge, or control thereof, and, if so in the possession, charge, or control thereof, claiming an interest therein, they were legally liable to be assessed as the owners of the property and for the tax properly levied upon such assessments. (Revenue Act, Sec. 13.)

If the property was not properly assessed to defendants, then the assessment and tax levied thereon imposes no legal obligation to pay the taxes so levied on defendants or any other person or party, and creates no lien on the real estate so assessed.

The judgment of the Court, as entered, is manifestly erroneous. The allegation of the complaint is that the property was assessed to the defendants, Pearis & McDonald, and that they were the owners thereof at the time of the assessment; and the judgment dismisses the suit as to the individual defendants, and renders judgment against the property. If the property was properly assessed to defendants, then that portion of the judgment dismissing the suit as to them is error; and if the property was not legally assessed to the individual defendants, then there was no legal claim for the taxes levied upon the property against defendants personally or the property, the assessment was void, and the suit should have been dismissed as to all.

Judgment reversed and cause remanded, and remittitur directed to issue forthwith.