23 Cal. 131 | Cal. | 1863
delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
This is an action to recover delinquent taxes levied for the fiscal year 1860, on certain real estate, improvements thereon, and personal property, in the County of San Bernardino. The Court rendered judgment against the defendants and the real estate assessed, from which they appeal.
The seventh section of the act under which this action was brought provides, that the District Attorney shall, immediately upon the receipt of a certified copy of the act, cause the same to be
It is objected that the real estate is made a party, as in a proceeding in rem. All proceedings for the assessment of property and the collection of taxes thereon are in the nature of proceedings in rem, as the property is considered primarily hable for the taxes assessed thereon, and there is therefore no impropriety in framing the proceedings in the form of an action in which the property is sought to be sold for the payment of the taxes. This objection, therefore, is not valid. The demurrer should have been sustained, however, as the complaint fails to state the value of the several kinds of property assessed.
After the demurrer had been overruled, the defendants answered, alleging that the property assessed was the separate property of them wives, as they acquired the same by descent from their deceased father; and denying that they had any right, title, or interest in the real estate, improvements, or personal property, except as managers of the personal property; and the Court found such to be the facts, but also found that the defendants lived upon and had been in the possession, charge, and control of the property ever since 1858. The General Revenue Law of 1860, under which this assessment was made, authorizes property to be assessed to the persons “ owning, claiming, or having the possession, charge, or control of any real or personal property,” and as the property assessed in this case was in the possession, charge, and control of the defendants, the assessment was properly made to them,
On the seventeenth day of May, 1861, the Legislature passed an act supplementary to the Act of March 27th (Stat. 1861, 416). It provides that in certain cases, including that of an assessment “ to the husband or agent of the real owner, the person hable to pay the taxes thereon may be sued by a fictitious name, or the real name of the party liable to pay the same ; and the fact that the property was not assessed in the name of the party hable to pay the same, shall be no defense to an action brought for the recovery of the amount of the taxes due thereon, if the summons is served upon the party hable to pay the same.” This provision does not properly apply to the case before us, because the property was “ assessed in the name of the party hable to pay the same,” as the defendants were in the possession, charge, and control of the property, and were thus liable to pay the taxes, as has been already shown. The summons has therefore in this case been “ served upon the party liable to pay the taxes,” within the terms of the statute. There may be cases where “ the husband or agent ” was not in “ the possession, charge, or control ” of the property, and therefore perhaps not liable to pay the taxes, in which case this provision may be applicable. The objection, therefore, that no summons was served on the wives of the defendants, is not valid.
The Court having erred in overruling the demurrer, the judgment is reversed and the cause remanded for further proceedings.