Opinion
Rehearing Denied Aug. 25, 1928.
Hearing Granted by Supreme Court Sept. 17, 1928.
Appeal from Superior Court, San Diego County; W. P. Cary, Judge.
Action by the Southern California Bond & Finance Corporation against James H. Mathes. Judgment for defendant, and plaintiff appeals. Affirmed. COUNSEL
Herbert C. Kelly, of San Diego, and Benjamin Kirby, of Los Angeles, for appellant.
Hamilton & Lindley, of San Diego, for respondent.
OPINION
KNIGHT, J.
This is an appeal by the plaintiff from a judgment in favor of defendant in an action to quiet title to lots 44 and 45 in block 192 of the City Heights Tract, a subdivision of land situate within the city of San Diego. For several years prior to June 30, 1924, the lots in question belonged to one L. S. Everts, and commencing in the year 1918 he purposely allowed the taxes thereon to become and remain delinquent until June 30, 1924, when the lots were sold at tax sale by the tax collector of San Diego county for the delinquent taxes due for the fiscal year 1918-1919, at which sale respondent became the purchaser. Within the statutory time, prior to the tax sale, Everts received by registered mail from Herbert S. Croghan, the tax collector of said county, the printed form of notice of sale required to be given by the tax collector pursuant to the provisions of section 3771a of the Political Code; and immediately upon the receipt of said notice Everts mailed to the tax collector a reply, written on the reverse side of said notice, as follows:
"Mr. Herbert Croghan-Dear Herb: Thanks for the notice. When I charged these lots off my books several years ago, I did so because I did not feel they were worth the extra cost to me for paving, grading, etc., and I still feel the same way about it. Here’s hoping that the party who gets them has a rabbit’s foot. Sincerely, Leslie Everts."
Following the tax sale and on July 10, 1924, the tax collector executed and delivered to respondent a tax deed in due form, and thereafter, to wit, on July 17, 1924, Everts and his wife executed and delivered to the appellant, Southern California Bond & Finance Corporation, a quitclaim deed to said property, which constitutes appellant’s ground of title.
In an opinion rendered by the trial court it was indicated that there were irregularities "with reference to the amount computed as the tax and penalty" and that there was "also a question with reference to the service of the notice of sale," which rendered the tax proceedings faulty; but the court held that, by virtue of said letter from Everts to the tax collector, neither Everts nor his grantee were in a position to "attack the tax sale for these irregularities," and accordingly directed that judgment be given for respondent. There were no findings made as to the asserted irregularities above mentioned, nor upon the questions of waiver or estoppel, the court having found generally that plaintiff was not the owner of the property nor entitled to the possession thereof, and judgment was entered in conformity with such general findings.
Upon publishing the delinquent list, the tax collector is required by section 3770 of the Political Code to "collect, in addition to the taxes due on the delinquent list, together with the penalties for delinquency, fifty cents on each lot, piece, or tract of land separately assessed *** which shall be paid to the county and be placed to the credit of the salary fund"; and pursuant to the provisions of said section the tax collector in the present case entered a charge of $1 against the two lots. The main contention appellant makes against the validity of the tax proceedings herein is that, if the assessment of said lots as entered upon the assessment roll be construed as a single assessment of the two lots, then the sale was void, because an overcharge of 50 cents was made on such single assessment, citing Rimmer v. Hotchkiss, 162 Cal. 385, 123 P. 256, Hall v. Park Bank, 165 Cal. 356, 132 P. 452, and Warden v. Broome, 9 Cal.App. 172, 98 P. 252; and that, on the other hand, if it be held that the lots were separately assessed, thereby justifying the added charge of $1 under said section 3770, then the sale was irregular, because, as appellant claims, the lots were not afterwards separately advertised and sold, citing Knox v. Higby, 76 Cal. 264, 18 P. 381; and Stege v. City of Richmond, 194 Cal. 305, 228 P. 461.
In our opinion, the entries made in the assessment roll show beyond question that the lots were separately assessed, because they were separately described and a valuation of $70 was placed against each lot, and the entries made in the delinquent tax roll were identical with those made in the assessment roll. Therefore, the lots being separately assessed, the tax collector was justified, under the provisions of section 3770 of the Political Code in collecting, in addition to the taxes shown to be due on the delinquent list, together with the penalties for delinquency, 50 cents for each lot.
Regarding the second question, as to whether there was any irregularity in the publication of the delinquent list, section 3764 of the said Code, as it existed in 1919 at the time of the delinquency herein, provided that:
"The tax collector must publish the delinquent list which must contain the name of the persons and a description of the property delinquent and the amount of taxes, penalties, and costs due, opposite each name and description."
In the published delinquent list for the fiscal year 1918-1919, the listing of property in question was made as follows:
"Number
Name and Description.
Taxes, Penalties, Costs.
7640
Everts, L. S.-In city of East San Diego, in CityHeights, lots 44 and 45, block 192 ....
$5.49
And in the addenda to the published delinquent list for the fiscal year 1923-1924, said property was listed as follows:
No.
To Whom Assessed and Description of Property.
Least Acceptable Bid.
1357
Everts, L. S.-In city of East San Diego, City Heights,lots 44 and 45, block 192..........
$5.49
It would appear, therefore, that all of the legal requirements of the statute were complied with; the published delinquent list having contained the name of the owner, and description of the property delinquent, and the amount of the taxes, penalties, and costs due thereon. Appellant contends, however, that in the preparation and publication of the delinquent list the tax collector should have departed from the form of the entries made in the assessment roll and in the delinquent roll, and segregated said lots and advertised them separately, with the amount of taxes, penalties, and costs due on each lot set opposite the description thereof. But our attention has been called to no statute or decision requiring or authorizing this to be done, and in the absence of such authorization the tax collector would have no right to do so. Nor do we believe that such action on his part is contemplated by the statute, because, in view of the innumerable subdivisions of land in the state containing their countless numbers of lots, which are being assessed and taxed in the identical manner here followed, such segregation and advertisement on the part of the tax collector would be not only impracticable, but would result in the publication of a delinquent list of endless length.
Moreover, in order to carry out the scheme provided by the law that each piece of property separately assessed shall bear and pay its own taxes and penalties, such segregation and advertisement which appellant contends should be made is wholly unnecessary, because section 3747 of said Code especially provides that "the taxes on any particular lot, piece, or parcel of land contained in any assessment may be paid separately from the whole assessment, if [as here] such lot, piece, or parcel has a separate valuation on the assessment roll ***" (italics ours), and that, when so paid, "the tax collector shall make an entry on the margin of the assessment-book, showing what certain property has been released by the payment of the taxes as herein provided, together with the amounts of such taxes separately and specifically set forth," and section 3771a of said Code provides in part that "*** no bid shall be accepted at such [tax] sale for a sum less than the amount of all taxes, penalties and costs due as shown in the advertised list. ***" It is evident, therefore, from the foregoing sections, that each lot in question here, being separately assessed, was subject to separate redemption or sale, without interfering with and independent of the tax lien existing against the other, provided payment was made of the amount of tax and penalties shown by the delinquent roll to be due against that particular lot.
The cases of Knox v. Higby, supra, and Stege v. City of Richmond, supra, cited by appellant, are not controlling in the present case, because there, as the decisions point out, the delinquent rolls and the published lists differed from the assessment roll, and were published in such form as to require the proceeds from the sale of one piece of property, which was separately assessed, to be applied in satisfaction of the tax lien existing against another piece of property, which was also separately assessed. Here the delinquent roll and the published list conformed strictly to the entries made in the assessment roll, and, the lots being separately assessed, the exact amount of taxes, penalties, and costs against each lot was readily determinable from the delinquent roll, and therefore, under the provisions of section 3747, each lot became and was subject to separate redemption or sale. For the reasons stated, we conclude that there was no irregularity in the tax proceedings which invalidated the sale.
We are also unable to sustain appellant’s claims that there was a variance of 9 cents between the total amount of taxes and penalties shown to be due by the delinquent roll and the total amount shown to be due by the published list. The specific items set forth in the delinquent roll prove that the correct total was $5.49, and this was the amount set forth in the published list. When the total was first entered in the delinquent roll, obviously a mistake of 9 cents was made in addition, the amount inserted being $5.40; but, as the photographic copy of the delinquent roll inserted in the transcript shows, this entry was corrected to read $5.49.
The printed form of notice of sale received by Everts was properly addressed to "L. S. Everts, 727 First Nat’l Bank Bldg. San Diego, Calif.," but the envelope in which it was sent was addressed to "L. S. Eberts," and appellant therefore contends that there was a failure to conform to the requirements of section 3771a of said Code. The point is utterly without merit, for admittedly Everts received the notice within the period of time the same was required to be mailed, and immediately answered it. In the case of Krotzer v. Douglas, 163 Cal. 49, 124 P. 722, cited by appellant, the notice having been improperly addressed did not reach the owner at all; and in the other case cited, Knight v. Hall, 28 Cal.App. 435, 152 P. 952, the notice was not mailed within the statutory period. Neither case is therefore in point.
Appellant further contends that the tax sale was void, because it was made for the delinquent taxes for the fiscal year 1918-1919, the first delinquency, instead of being made for the delinquency of 1923-1924, citing Scott v. Beck (Cal. Sup.) 259 P. 933. But a rehearing was subsequently granted in that case (266 P. 951), and the final decision therein was placed upon different grounds. Therefore the decision which was set aside cannot be taken as authority.
Concluding, as we do, that the proceedings upon which the tax sale herein was based were not void, it is unnecessary to consider or determine the legal effect of the letter from Everts to the tax collector, written on the back of the notice of sale.
The judgment is affirmed.
We concur: TYLER, P. J.; CASHIN, J.
On Application for Rehearing.
PER CURIAM.
Appellant petitions for a rehearing, again urging substantially the same grounds heretofore relied upon for reversal, together with the additional ground that the decision herein is in conflict with one rendered about the same time by the District Court of Appeal of the Second District, Division 1, in the case of Gottstein v. Kelly et al. (Cal.App.) 269 P. 940. It appears that the decision in that case was filed five days prior to the filing of the one in the present case, and although, as the record in that case discloses, the sole attorney for appellant therein was also leading counsel for appellant in the present case, having been the sole attorney of record for appellant from the institution of the suit to the time appellant’s reply was filed, at which time other counsel became associated with him, the petition for rehearing herein conveyed to us for the first time the information that the main point involved in the present appeal was involved also in another appeal before the reviewing court of another district. And in this connection it should be stated, also, that while that case involved several legal points, the position taken by said attorney in that case with reference to the legal point upon which the present appeal was decided was diametrically opposed to the position he took before us. In that case he was claiming title under and sought to sustain a tax deed, and therefore was urging the trial and appellate courts to declare that the asserted irregularity in the tax proceedings relating to the form in which the delinquent tax list was published was no irregularity at all; whereas, in the case before us, he sought to nullify a tax deed founded upon the same asserted irregularity, and was urging that such irregularity was wholly fatal to the tax proceeding.
However, we have examined the decision in that case, and it would appear therefrom that, although the decisive point involved in the case before us was there considered and discussed, it did not prove to be the turning point on that appeal; the court there holding that the erroneous use of the word "percentage" in the publication of the delinquent list, instead of the statutory word "penalties," rendered the proceeding void. There was no such defect in the present case. Therefore, notwithstanding that the opinion in that case contains an expression of views upon the point at issue here, which may be somewhat at variance with the ultimate conclusion we have reached thereon, we are of the opinion that, in view of the different ground upon which that case was decided, the decision therein does not seriously affect the one in the present case.
Moreover, upon examining the record in that case, it becomes evident that the arguments advanced by said attorney in support of the validity of the tax deed in that case tends strongly to fortify the decision we have rendered here, for in that case in dealing with the point involved here he says in his reply brief:
"Respondent criticizes the form of the published delinquent notice, because the amount was not set opposite each description. But section 3764 does not say ‘each description,’ but ‘each name and description.’ There being but one name in this instance, there was but one place where any amount was required by this section to be stated. There are several California cases dealing with the form of such published list, and in all of them a substantial compliance with the statutory requirements has been considered sufficient, and the lists have in each instance been liberally construed."
And after quoting from section 3885 of the Political Code and several California cases, he continues:
"No person could be misled by this delinquent list. Any person of ordinary intelligence, examining it, could tell that the amount stated in it was the amount of taxes, penalties, and costs for which the three lots were being sold to the state. Under these circumstances the list performed its function and was sufficient" (citing several California cases).
And in his petition for a rehearing in that case he says:
"The question thus seems to be narrowed down to the discussion of whether it is necessary for the tax collector, in publishing the delinquent list, to specify an amount against each lot separately listed and valued, in cases where several such lots are included in a single assessment, and the computations on the assessment roll and delinquent roll are carried out on a single line, and contain only a single gross amount. It is respectfully urged that the duty of the tax collector in publishing the delinquent list is to copy the items in the delinquent roll and assessment roll, rather than to recalculate and divide them into their component items, and that any other rule would be impracticable in operation, would be of no actual benefit to any person, would involve much clerical labor, and would undoubtedly result in many mistakes and discrepancies, and thus needlessly hinder the state in its attempt to collect its just dues."
As indicated, we find no reason to recede from the conclusion we have reached in the case before us, and believing, as we do, that there is no merit in the other points raised by appellant, including the one that the recitals in the tax deed render it void, the petition for rehearing herein is denied.