Page images
PDF
EPUB

Reference is made to the notice of sale by the state contemplated by section 3897 of the Political Code, and it is said that these notices are void, as they do not contain the name of the delinquent owner. This, however, is a requirement of section 3764 of the Political Code, which provides for the notice of sale to be given by the tax collector where the property is to be sold to the state, and not by it. It has been held in Ellis v. Witmer, 134 Cal. 249, 66 Pac. 301, that a notice which fails to give the name of the delinquent owner is insufficient. Such requirement, however, is not found in section 3897 of the Political Code. In this the only requirement is that the tax collector's notice shall contain the description of the property sold, a detailed statement of all delinquent taxes. penalties, costs, and expenses up to the date of sale, "and shall give the name of the person to whom the property was assessed for each year on which there may be delinquent taxes against said property, or any part thereof." The notices here in question seem to be deficient in this respect. It is made to appear that the properties were sold for delinquent taxes, penalties, costs, and charges for the years 1887, 1888, 1889, 1890. 1891, 1892, 1893, 1894, and 1895. The name of the person or persons to whom the property was assessed during these years is not given. But, upon the other hand, since the owner had received due notice by publication of the fact that his taxes were delinquent and the property had been sold to the state for such delinquency, it was not necessary to the validity of the proceedings that any notice of the intended sale by the state should be given to him at all. Indeed, the state might have provided that such sales could be made. in private. And under section 3787, by the issuance of the deed, the presumption of the regularity and sufficiency of this notice of sale became conclusive. See Bank of Lemoore v. Fulgham (Sac. No. 1,338) 90 Pac. 936.

The publication of the notice of sale required by section 3897 of the Political Code must be for three weeks. The publication as recited in the deeds was made in a paper designated "The Los Angeles Daily Journal." It is argued from this, without any proof, that the paper was in fact a daily journal, and that the notice should have been published as often as the paper was issued during the specified period. But the court will not presume, merely from the title of the paper, that it was published daily, and, moreover, a publication under this law once a week for the prescribed period is a good publication, even if it appear in a newspaper published daily. People v. Reclamation Dis., 121 Cal. 522, 50 Pac. 1068, 53 Pac. 1085.

Section 3897 of the Political Code declares that "at the time set for such sale the tax collector must sell the property described in the Controller's authorization and said notices at public auction to the highest bidder

for cash in lawful money of the United States." Respondent argues from this, under the earlier system of taxation which prevailed in this state, and which elsewhere at present prevails, that it was the duty of the tax collector to have sold the property for the amount of the tax to the person who would pay the tax for the least quantity of land, and such is what is meant by the phrase "highest bidder" as now employed. If the law in fact contemplates that all the property must be sold, and the phrase "highest bidder" means him who will pay the largest cash sum for the property, it must result that the state will receive from its sales of such lands amounts far in excess of its accrued taxes, charges, and penalties. And (so runs respondents' argument) as there is no provision in our law for repayment to the original owner of this surplus, the law operates inequitably and unjustly in compelling such unfortunate delinquent owners to bear an excessive burden for the support of the government, and such a law violates the fundamental, equitable principle which is at the basis of all of our systems of taxation, namely, that, in the apportionment of taxes, due regard shall be had to making taxes uniform, and compelling every person to bear only his proportionate share of them. It may at once be admitted that in the statutes of sister states, as well as of the United States, where the law requires the sale of all the property, there is commonly found a provision whereby the excess over the demands of the state is made over to the owner. It also may be admitted that in our system of revenue collection a like provision might have been inserted. But such a provision is not found. The owner of the property who has permitted his taxes to become delinquent receives notice that, unless the taxes be paid by a given date, his land will be sold to the state. From the date of the sale, for the full period of five years, the owner has an absolute right of redemption from the state, and after that period of five years this right of redemption is still his until the state shall have actually sold the property. For two reasons it is to the benefit of the state that property so acquired should by it be resold into private ownership. The first, because it is inexpedient that the state should be charged with the burden of the care of many such parcels of property, its administrative machinery not being adapted to such end. In the second place, it is desirable always that the ownership of state lands, saving those which are necessary for its governmental functions, should be transferred to its citizens, whereby follow increasing population and the higher development, betterment, and improvement of the land, thus adding greatly to the wealth of the state. It must be concluded, therefore, that, when the law speaks of the sale of "the property," it means all of the land, and, when it says that the land shall be sold to the "highest bidder," it means him

who will make the highest cash bid for all the property. It will not be questioned but that the state might have provided that the surplus moneys received by it from such sales should be paid over to the former owners of the properties sold. But the single question which is to be considered is that of the power of the state to decree such sales and retain the money. If there be no violence done to the Constitution of this state or of the United States by a law whereby under the indicated circumstances the state retains such excess moneys to its own use, no equitable considerations may move a court to declare void that which the Legislature has the power to decree. It is to be noted, then, in considering this, that the delinquent owner is given process of law in the notice of the sale to the state of which he is advertised by publication. It is to be noted, moreover, that the liberal period of redemption of full five years is accorded him as an absolute right. At the end of this five years the deed to the state is made, and the title of the state becomes absolute. We are unable to discover any constitutional objection which interposes and invalidates the state's title, and none has been pointed out. We are unable to see why the state may not obtain a title free from all equities in the former owner at the expiration of five years as may a private citizen after foreclosure upon the mortgage when the period of redemption following such foreclosure has passed. That in other states the laws provide for a payment to the owner of the surplus moneys after the state's exactions have been met we can regard only as an act of generosity upon the part of the state, and not as the performance by it of a constitutional duty to its citizens. For these reasons, we conclude that the law in this respect is constitutional.

The other propositions advanced by respondent are sufficiently answered by the cases of Fox v. Townsend, supra, Bank of Lemoore v. Fulgham (L. A. No. 1,338) 90 Pac. 936, and Baird v. Monroe (Cal.) 89 Pac. 352, and no particular mention of them is, therefore, necessary.

For the foregoing reasons, the judgment and order appealed from are reversed, and the cause remanded.

We concur: ANGELLOTTI, J.; SLOSS, J.; LORIGAN, J.; SHAW, J.; McFARLAND, J.

(152 Cal. 51)

NOTE-The following opinion, per Henshaw, J., was reversed in part on rehearing (91 Pac. 1004):

Plaintiff sued to quiet title to certain lots of land, claiming title thereto under and by virtue of certain tax sales to the state of California and deeds from. the state of California to him. The court gave its decree against the claim of plaintiff, and he appeals from the order denying his motion for a new trial.

One of the lots in question was lot 19 in block 26. The assessment of this lot, upon which the tax sale was based, shows that there was no dollar mark, or other mark, sign, word, Abbreviation of explanation on the assessment

roll to indicate what was meant by the figures in the column designed to show the value of the property and the amount of the taxes. This being the case, the assessment was void and the sale and deeds made thereunder are likewise void. Hurlbutt v. Butenop, 27 Cal. 54; Braly v. Seaman, 30 Cal. 611; People v. S. F. Sav. Union, 31 Cal. 132; People v. Hastings, 34 Cal. 571; Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356. This omission appearing in the assessment itself necessarily invalidates the proceedings. In this respect this case is to be distinguished from the case of Carter v. Osborn (L. A. 1,735, filed March 7, 1907), 89 Pac. 608, where the omission of the dollar mark or sign was in the delinquent list and not in the assessment. The decree as to lot 19, block 26, was therefore correct. The other lands whose titles are in controversy are lot 17, block 20, lot 17, block 24, and lot 11, block 5. The assessments of these lots were in all vital respects the same as the assessment set forth and discussed in Baird v. Monroe (Cal.) 89 Pac. 352, saving only that, instead of being described as "in Pellissier Tr.," they were described as "in Electric Railway Homestead Assn. Tr." As in Baird v. Monroe, a map of the Electric Railway Homestead Association, recorded in book 14. p. 17, of Miscellaneous Records of the County of Los Angeles, was introduced in evidence, which map showed the location of the lots in controversy. The assessments therefore in this respect are identical with that discussed in Baird v. Monroe, and aided by the map which was introduced in evidence, the descriptions contained in these assessments were "sufficient to identify" the land. McCullough v. Olds, 108 Cal. 529, 41 Pac. 420.

Certain propositions are urged against the validity of the deeds made by the tax collector to the state. Section 3776 of the Political Code provides for a certificate of sale, and declares what that certificate must contain. Section 3785 provides for a deed from the tax collector to the state when the time for redemption has expired, and sets forth what such deed must contain; the recitals being identical with those called for in the certificate of sale. Section 3786 declares "that the matters recited in the certificate of sale must be recited in the deed." By reason of legislative oversight, there was at the date of these sales no law providing for the issuance of certificates of sale. It is contended that, as there was no law for a certificate of sale, there could in these deeds be no compliance with the requirement of section 3786, to the effect that the deed must contain a recital of the matters contained in the certificate. To this, however, it must be answered that, when the law requiring a certificate was repealed, there fell with it the requirement that the deed must contain the matters recited in the certificate. Moreover, section 3785 requires in the deed a recital of all the matters and things which the certificate contains, and those matters were in fact fully set forth in the deed. The only imperfection that can be charged in this regard was an imperfection in stating the time when the right of redemption had expired. But this irregularity was cured by the confirmatory act of February 28, 1903, fully discussed in Baird v. Monroe.

Certain correction deeds were made by the tax collector to the state, and it is urged that these deeds were without authority and void. The general principles governing such correction deeds are well settled. When a tax deed does not conform in its recitals to the facts, the officer is authorized to execute a second and corrected deed, but he has no power to execute a second deed which shall misstate the facts respecting any proceedings prior to its execution. Such a deed would be void. The power and the duty of the proper officer is not exhausted by the execution of an irregular or imperfect tax deed. Douglass v. Nuzum, 16 Kan. 515; McCready v. Sexton, 29 Iowa, 356, 4 Am. Rep.

214; Woodman v. Clapp, 21 Wis. 350. Section 3805b of the Political Code, dealing with the subject of misstatement of facts or clerical errors occurring in the tax collector's deeds, declares that these may be corrected by the tax collector upon an order of the board of supervisors entered upon its minutes directing correction by the issuance of a new or amended tax deed. If, as respondent here contends, such an order of the board of supervisors was necessary and was not made, it was incumbent upon him to have shown it. As the record is here presented, the presumption will be that the deeds were executed by the officer under proper direction and authority. Moreover, these correction deeds seemed to have been made for the sole purpose of making a more certain statement of the time when the right of redemption had expired, and for the reasons above given the original deeds themselves were sufficient upon this point. Nor do we perceive any force in the objection that the correction deeds to the state were made after the state had parted with the title. No reason is discernible why the state, like a private individual, may not obtain a proper correction deed for the betterment of the title to property which it has conveyed, and, if this be done after conveyance, why, as in the case of an individual, it should not serve to perfect the title granted."

The deed contained a description of the property as "situate, lying and being in the county of Los Angeles, state of California, and described thus: Mortgage interest in the following described property, Electric Ry. Homestead Association Tract, lot 17, block 24." It is contended that the deed here purports to convey only a mortgage interest in the lot, without any explanation, and that the deed is therefore void. But article 13, § 4, declares that "a mortgage for the purposes of assessment and taxation shall be deemed and treated as an interest in the property affected thereby." The further recitals in the tax deed make this case parallel with that of Doland v. Mooney, 72 Cal. 34, 13 Pac.. 71, where such a deed was held to be sufficient. This property was sold for taxes for the year 1894. It is objected that, upon the assessment book for 1895, there was not stamped an entry of the fact "that said lot had been sold for taxes, and the date of such sale," as required by section 3801 of the Political Code as it read in 1905. Only the words, "sold to the state." were so stamped. But it is the assessment and sale for taxes for 1894 which are involved in this case, and a clerical misprision of the year after cannot affect the validity of such proceeding. Moreover, if the purpose of the requirement is to give notice to the fiscal officers, certainly a notice, "Sold to the state," is sufficient to put them on inquiry, and the same is true if it be said that the requirement was designed to give notice of the sale to the owner.

For the foregoing reasons, the order refusing to grant a new trial was proper as to lot 19, block 26, and the judgment stands affirmed as to this lot. The order is reversed as to lot 17, block 20, lot 17, block 24, and lot 11, block 5.

[merged small][merged small][ocr errors][merged small]

session. Held, that an affidavit alleging that plaintiff had no physical possession of the premises, that his only possession was the constructive possession accompanying the legal title, and that such constructive possession had never been disturbed, did not show the actual possession required.

2. WORDS AND PHRASES-CONSTRUCTIVE POSSESSION.

"Constructive possession" is that which exists in contemplation of law without actual personal occupation of the property.

[Ed. Note. For other definitions, see Words and Phrases, vol. 2, pp. 1474-1475.1 3. SAME "ACTUAL POSSESSION."

To constitute actual possession of land, there must be such an appropriation of the land by the claimant as will convey to the community where it is situated visible notice that the land is in his exclusive use and enjoyment, an appropriation manifested by either inclosing, cultivating, improving, or adapting it to such uses as it is capable of.

4. STATUTES-SPECIAL LEGISLATION-RECORDS - Loss OF RECORDS - ESTABLISHMENT OF TITLE.

St. Ex. Sess. 1906, p. 78, c. 59 (the McEnerney act), creating a system of procedure for establishing title to real property where the public records thereof have been destroyed, and providing that an action may be brought by any person claiming an estate in real property who by himself or his tenant is in the actual possession thereof, is not unconstitutional as special legislation. in that it divides property owners into two classes, one having actual and the other only constructive possession of their property, without any constitutional basis for the distinction.

In Bank. Application by John N. Lofstad for writ of mandamus against Hon. F. J. Murasky, as judge of the superior court. Pe

tition denied.

Edward C. Harrison, for petitioner. Page, McCutchen & Knight, for respondent.

LORIGAN, J. This is an application for a writ of mandate. The petitioner commenced an action, under the provisions of what is familiarly known as the "McEnerney act" (St. Ex. Sess. 1906, p. 78, c. 59), to establish and quiet his title to certain lots in the city and county of San Francisco, being part of outside land blocks Nos. 270, 299, and 701. This act, which creates a system of judicial procedure for the establishing of title to real property where the public records which would otherwise establish it have been destroyed, provides that an action may be brought under it by any person who claims an estate in real property, and "who by himself or his tenant, or any other person holding under him, is in the actual and peace able possession thereof," and requires that the complaint filed shall be accompanied by an affidavit which shall show the character of the estate which the plaintiff claims in, and the possession he has of, the real property described in the complaint. The aftidavit filed by the petitioner with his complaint stated that he was the owner in fee simple of the said property, having derived title thereto under sundry conveyances to him made in 1897 and 1898, and duly recorded in the recorder's office of the city and

county of San Francisco, and, as to the character of his possession of said property, declared that "there is no physical possession of said premises by said petitioner for the reason that the plaintiff has not been able to occupy the same personally, or to find any person to whom he can lease the same, and the same are uninclosed and vacant; that the only possession thereof is therefore the constructive possession which accompanies the legal title in it; that this constructive possession of plaintiff has never been disturbed by any claim or any occupation, intrusion, or trespass of any other person, and said plaintiff therefore alleges the same to be both actual and peaceable within the meaning of the 'act to provide for the establishment and quieting of title to real property in case of loss or destruction of public records,' approved June 16, 1906." Upon the filing of his complaint and affidavit, the petitioner applied to the respondent, as judge of the superior court in which the action was pending, for an order, required by section 4 of the act, designating the newspaper in which publication of summons in the suit should be made. The respondent refused to make the order, and petitioner now applies to this court for a writ of mandate requiring him to do so.

The refusal of the respondent to make the order in question was based upon the ground that the character of the possession of petitioner of said property, as stated in his affidavit, was not such as to give the superior court jurisdiction to proceed in the action or to grant the relief provided for in the act; that the court could only acquire jurisdiction to proceed when the affidavit showed that the party bringing the action was in the actual possession of the property, title to which was sought to be established by him, and that the affidavit of petitioner showed that he was not in such actual possession, and, at most, was only in constructive possession of the property. We do not think there can be any doubt but that the action of the respondent in refusing to make the order was correct.

The position of the petitioner seems to be, as stated in his affidavit, that because it appears therefrom that he has the legal title to the property, and hence in contemplation of law is in constructive possession of it, and as there is no adverse claim to the property or any adverse occupancy thereof, he is, therefore, to be deemed in the actual possession of it within the intent and meaning of the McEnerney act. This process of reasoning. while possibly warranted by the exigency of the situation confronting petitioner when endeavoring to avail himself of the benefit of the act, is obnoxious to the objection that it obliterates the well-recognized distinction between actual and constructive possession, while at the same time it attempts to force upon a phrase well recognized in law a meaning entirely different from what it usually

91 P.-64

possesses, and the ordinary meaning of which the Legislature is supposed to have understood when it employed it in the act. It must be assumed that when the Legislature required, as a prerequisite to the right to invoke the remedy which it provided, that the party should be in the actual possession of real property, it understood the distinction between the legal classes of actual and constructive possession, and that it used the term "actual possession" advisedly and as generally understood. When the petitioner stated in his affidavit that he was not in the physical possession of the property himself or by any one else, and that it was uninclosed and vacant, he showed that he was not in the actual possession under any definition of what constitutes actual possession, and stated himself out of court, unless, as he claims, the further facts stated by him amounted to a showing of actual possession. But that they do not we think it quite apparent. These facts relied on consist of the conveyances by which he acquired the property, that he is the owner in fee simple, and that no person makes any claim to it beside himself, nor is any one in adverse occupancy of it. Treating the affidavit as proof of these facts which it states, and for the purpose of obtaining the order required under the act it must be so treated, it only shows legal title to the property in petitioner, from which it follows as a fiction of law that he is constructively in possession of it. The further fact stated by him that there is no adverse claim or adverse occupancy of the property by any one does not affect this constructive possession one way or the other. The mere fact that there is no adverse possession of the premises to which one holds the legal title does not make the possession of such holder anything more than a constructive one. It only tends to show that there is no actual possession of it by any one, and hence his constructive possession is undisturbed. For the purpose of this proceeding, it does not have the effect of changing petitioner's constructive possession into actual possession within the intent of the act under any possible theory. All the possession he has, even if there be no adverse possession, is constructive possession, the possession which in contemplation of law followed his legal title to the property, while what the act required him to have, in order to avail himself of its provisions, is actual possession-possession in fact.

While it is true that the act in question is of a remedial nature and should be liberally construed so as to effect the purpose contemplated by it, a court is not warranted under the guise of liberal construction in giving to a term or phrase a different meaning than such as it is generally understood to possess. "Actual possession" is a term of well-understood legal meaning, and is used in opposition to the other term "constructive possession" or "possession in law." The dis

tinction between these classes of possession is so well defined and so generally recognized that it is hardly necessary to proceed to any great extent in pointing it out. In a general way, it may be said that constructive possession is that which exists in contemplation of law without actual personal occupancy of the property, such a possession as in contemplation of law proceeds from the vesting of the paramount title or follows in the wake of the legal title, or, as more exactly defined, "constructive possession, or possession in law as it is sometimes called, is that possession which the law annexes to the legal title or ownership of property when there is a right to the immediate actual possession of such property, but no actual possession." 28 Am. & Eng. Ency. of Law (2d Ed.) 239. This is the possession, and the only possession, which it appears from the affidavit of petitioner he had of the land described in his complaint, constructive possession which the law connects with his ownership of the legal title. Opposed to this constructive possession is actual possession, the character of the possession which the act requires in order that its provisions may be availed of. What constitutes such possession was early defined by this court, and some of the cases doing so are found quoted from in Brumagim v. Bradshaw, 39 Cal. 24-44. It is there said: "In Coryell v. Cain, 16 Cal. 573, which is a leading case in this state on that point, we define actual possession to be 'a subjection to the will and dominion of the claimant, and it is usually evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use, according to the particular locality and quality of the property.' In Plume v. Seward, 4 Cal. 96, 60 Am. Dec. 599, it is said that, to maintain an action on the ground of prior possession, 'there must be an actual bona fide occupation, a possessio pedis, a subjection to the will and control, as contradistinguished from the mere assertion of title and the exercise of casual acts of ownership, such as recording deeds, paying taxes,' etc. In Wolf v. Baldwin, 19 Cal. 313, in stating what kind of actual occupation' was required under the Van Ness Ordinance, the court says it was a 'possession which is accompanied with the real and effectual enjoyment of the property. It is the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must be evidenced by occupation, or cultivation, or other appropriate use, according to the locality and character of the particular premises. *** It must, in other words, be an open, unequivocal, actual possessionnotorious, apparent, uninterrupted, and exclusive carrying with it marks and evidences of ownership, which apply in ordinary cases to the possession of real property.'

We do not think it necessary to further refer to the authorities defining actual possession. They are agreed that, in order to con

stitute such possession, there must be an appropriation of the land by the claimant such as will convey to the community where it is situated visible Lotice that the land is in his exclusive use and enjoyment and appropriation manifested by either inclosing it, or cultivating it, or improving it, or adapting it to such uses as it is capable of. This rule announced in the authorities cited, which is the general rule in respect to what constitutes actual possession, is embodied in our Code (Code Civ. Proc. §§ 322, 323) as the one which shall prevail when accompanied by payment of taxes (Code Civ. Proc. § 325), in order to sustain title by adverse possession when such title is founded upon a written instrument, and we see no reason why it should not be applicable as defining the actual possession required to be had in order to invoke the benefit of the McEnerney act.

It is insisted by the petitioner that the actual possession required by that act is not to be construed as strictly as it is in the authorities defining the phrase for the purpose of constituting adverse possession under the statute of limitations referred to, as the reasons and objects of the two statutes are different. But the rule as to what constitutes

actual possession when title by adverse possession is asserted under the statute is no different from the general rule which obtained before the statutory enactment, so that the statute lays down really no stringent rule upon the subject. It simply embodies the general rule. Nor do we discover any purpose disclosed by the term as used in the MeEnerney act which would justify us in making the distinction suggested, or any reason why we should define actual possession as used in that act to mean something different from actual possession when asserted to support a claim of title by adverse possession. What constitutes actual possession in respect to such claim, or whenever the meaning of the term has been in question, has been sharply and clearly defined by the authorities in this state, and, as we say, is really the general rule on the subject, and, in the absence of any disclosed intention on the part of the Legislature to give it a different meaning than its general one, we cannot assume that it so intended. We are referred to no authorities in this state where, when the meaning of the term "actual possession" was under consideration, any different meaning was given to it than the authorities cited by us disclose. It may be said, too, in passing, as accentuating the proposition that when the Legislature used the term "actual possession" it employed it as generally defined and to require possession in fact, that it declares in the act that such possession shall be by the party or his tenant or other person. Possession by tenant or other person could have no relevancy except as applied to actual possession. Aside from this, we do not discover anything in the affidavit of petitioner which

« PreviousContinue »