Opinion
Rehearing Granted Oct. 27, 1927.
Superseding judgment of District Court of Appeal, 254 P. 637, reversing the superior court.
Appeal from Superior Court, Los Angeles County; Ralph H. Clock, judge.
COUNSEL
Earl P. Thompson, McKenna & McKenna, Hood & Riley, Catherine A. McKenna, and J. Irving McKenna, all of Los Angeles, for appellant.
Andreani & Haines, John L. Bisher, Jr., Frank E. Carleton, Clara Shortridge Foltz, and Elliott H. Barrett, all of Los Angeles, for respondent.
Emmet H. Wilson, of Los Angeles, amicus curiae.
OPINION
CONREY, Justice pro tem.
Action to quiet title to lot 93 in tract No. 909, situated in the city of Los Angeles. The statement of the case, as here quoted, is taken from the decision of the First District Court of Appeal, Division 1, rendered prior to the order for hearing in this court, and is adopted as part of this decision.
‘The complaint alleged title in the plaintiff with right to possession. The averments of the complaint were denied by defendant, who alleged title in himself through a tax deed from the state of California. Neither of the parties to the action was in actual possession of the lot, which was unimproved. Judgment was entered for the plaintiff, from which the defendant appeals on the ground that the evidence was insufficient to sustain the allegations of the complaint and the conclusion of the trial court that defendant had no title to the property.
‘The plaintiff in support of her complaint, introduced in evidence a deed dated October 16, 1911, executed by Clara G. Spring et al., which in terms transferred the tract mentioned to Lizzie J. Brent, a deed from the latter and her husband to Brent Investment Company, a corporation, conveying the same property, together with a deed from the corporation to plaintiff of the lot in question, the latter transfer being dated April 3, 1913. The testimony of an officer of the corporation sufficiently shows that Lizzie J. Brent was in actual possession of the entire tract, and that the corporation likewise was in possession at the time of the transfer to the plaintiff. This evidence was sufficient prima facie to establish ownership in the plaintiff. Holthoff v. Freudenthal, 22 N.M. 377, 162 P. 173; Mitchell v. Titus, 33 Colo. 385, 80 P. 1042; Rockey v. Vieux, 179 Cal. 681, 178 P. 712; Pearson v. Hellman Commercial T. & S. Bank, 199 Cal. 305, 249 P. 10; Kilfoil v. Warden, 46 Cal.App. 502, 189 P. 303.
‘Defendant claims title as grantee under a tax deed dated August 4, 1919, executed by the tax collector of Los Angeles county. The deed recited that the lot described was duly assessed for taxation in the year 1913 to Lizzie J. Brent, and was thereafter, on the 3d day of July, 1919, duly sold to S. Beck by W. O. Welch, tax collector of the county of Los Angeles, for nonpayment of delinquent taxes which had been legally levied in the year 1913 and were a lien thereon; further stating the total amount for which the same was sold, and that all taxes levied and assessed against the property prior to the year 1919 had been paid and discharged. * * *
‘It appears from the evidence that the lot was assessed to the plaintiff in the years 1916 and 1920, inclusive, and that the taxes levied thereon after the year 1913 to and including the first installment of the year 1921 were paid by her with the exception of the second installment of 1919, which became delinquent, and the lot was again sold to the state in 1920. Defendant redeemed the property from the latter sale, and after the year 1920 the taxes levied thereon, with the exception of the first installment of 1921, were paid by him. The proceedings leading to the sale to defendant on July 3, 1919, were conducted under the provisions of sections 3764 and 3771 of the Political Code, as amended in 1913 (Stats. 1913, pp. 556, 557). In the addenda attached to the published tax list and notice of sale appeared the name of Lizzie J. Brent, the person to whom the lot which was therein described was assessed for the delinquent taxes of 1913. The name of the plaintiff, who was the record owner in the years 1918 and 1919, and to whom the property was last assessed next before the sale in question, did not appear in the list or in the notice mentioned above. Furthermore, it was not directly shown at the trial that the tax collector complied with the provisions of section 3771 of the Political Code by mailing a copy of list or publication to the last known post office address of the plaintiff. It is contended by the plaintiff that it was essential to the validity of the published notice that her name, as the owner and the person to whom the property was last assessed next before the sale, be inserted therein, and that the evidence was insufficient to show a compliance with the statutory requirement of notice by mailing.
‘It was provided by section 3764 of the Political Code (Stats. 1913, p. 556) that on or before the 5th day of June each year the tax collector must publish the delinquent list, which must contain, among other things, ‘the names of persons and a description of the property delinquent,’ and that before its publication the tax collector and auditor should jointly arrange the list so as to designate in some particular manner the property contained in the list which was sold to the state five years previous, under the provisions of section 3771 of the Political Code.
‘It was provided by section 3771 of the Political Code (Stats. 1913, p. 557) that the property contained in the advertised list, as provided by section 3764 of the Political Code, which had not been redeemed from the provious sale to the state, be sold by the tax collector at public auction, and further that within five days after the first publication of the list the tax collector should mail a copy of the list or publication, postage prepaid thereon and registered, to the party to whom the land was last assessed next before such sale at his last known post office address. It was further provided by section 3785b of the Political Code (Stats. 1913, p. 558) that the tax collector should execute to the purchaser a deed to the property sold, this deed to contain certain recitals, those here material being as follows: That the property was duly assessed for taxation, the year assessed and the name of the person to whom assessed being stated, and was thereafter, on the date of the sale, duly sold by the tax collector to the grantee named for nonpayment of the delinquent taxes which had been legally levied in the year first mentioned, and were a lien on the property, no provision being made for a recital of the name of the owner or of the person to whom the property was last assessed next before the sale. It was also provided that no matters other than those stated in the section need be recited in the deed, which by subdivision 5 of section 3786 of the Political Code (Stats. 1911, p. 1102) was made primary evidence that ‘at a proper time and place the property was sold as prescribed by law, and by the proper officer.’’
It must be kept in mind that we are dealing with the law as it was in July, 1914, when the sale of this property was made to the state for delinquent taxes of 1913. That law follows through all proceedings dependent upon that sale. Biaggi v. Ramont, 189 Cal. 675, 679, 209 P. 892.
The provisions of section 3764, Political Code, for the publication of a delinquent list, primarily refer to the unpaid taxes of the immediately preceding tax year. Stats. 1913, p. 556. The reference therein to property sold to the state ‘five years previous under the provisions of section 3771 of this Code,’ etc., are incidental to the tax sale procedure that is to result from the current delinquency. This fact is rendered still more clear by reading section 3771 (Stats. 1913, p. 557), which, after first providing by general rule that the sales for delinquent taxes shall be made to the state, qualifies that rule by the proviso that any property ‘contained in the advertised list’ as provided for in section 3764, ‘which has not been redeemed from the sale made to the state five years previously, shall be sold at public auction to the highest bidder. * * *’ But the sale itself is authorized only as a sale of property contained in the advertised list, and for the then delinquent taxes for which no sale had been made before.
This is manifest from the fruther provisions that no bid shall be accepted for less than the amounts due ‘as shown in said advertised list,’ and that the purchaser is allowed 30 days within which to make redemption as provided in section 3785b, which section (Stats. 1913, p. 558) requires that no deed shall be delivered by the tax collector ‘until redemption has been made of such property and all taxes, penalties, interest, and charges have been paid which may have been accrued by reason of any previous tax sale or delinquency.’
Briefly summarized, these provisions of the law are intended to provide a method by which, in cases of repeated delinquency in payment of taxes against the same property, the sale for the last delinquency shall be made to any purchaser who will buy, and who shall settle the state’s claims in full by paying off all other tax liens outstanding against that property.
In the case at bar, the tax deed under which the defendant claims title shows on its face that it was issued pursuant to an attempted sale in the year 1919, for and on account of the taxes of the year 1913; and the deed was executed pursuant to sale so made at a time when the taxes of the year 1918 (assessed to the plaintiff and paid by her) were not delinquent. The property was not contained in the 1918 delinquent list, nor was the plaintiff’s name shown therein. The property was, indeed, mentioned in the ‘addenda list’ of property previously sold to the state, and is there given as property assessed to Lizzie J. Brent. The name of the plaintiff, to whom the property was last assessed (i. e., for the year 1918) is not found in the delinquent list, nor in said ‘addenda list.’
On the record thus shown, and even if the notice of sale had been mailed to the plaintiff, the tax collector was without any right to make the sale to defendant. Therefore the sale was void and the tax deed was void. Our decision on this point renders it unnecessary to discuss any other objections to the deed.
The judgment is affirmed.
We concur: WASTE, C. J.; PRESTON J.; CURTIS, J.; LANGDON, J.; SHENK, J.; SEAWELL, J.