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1905. Notice of intention to move for a new introduced by plaintiff that the tract was trial was likewise served on April 24, 1903, assessed to plaintiff for the years 1897 to but it is claimed by defendant that it was 1904, inclusive. The acreage and descripmot filed with the clerk until May 27, 1905. tion varied in different years (omitting here There is evidence tending to show that all of the part of section described), somecounsel for plaintiff handed the notice of times by metes and bounds, as in plaintiff's intention to the clerk, with other papers, on deed (1897, 1998, 1899, 1903, each assessApril 21th, but for some reason not clearly ment 153 acres, except 1903 for 149 acres) ; explained the clerk failed on that day to again, northwest 14 (1900); south 110 acres indorse the paper as filed. Later, on May of northwest 14 (1901, 1902); and fractional 27th, his attention was called to the omis- south 119 acres of northwest 14 (1904). Paysion, and on this latter day he indorsed the ment in full of taxes for these assessments paper: "Filed April 24, 1905. T. E. Clark. was shown. Defendant introduced assessClerk.” The testimony of the clerk and of ment rolls showing assessments to defendplaintiff's counsel was taken on the point, ant (omitting all after part of section deand we think there was sufficient to justify scribed) as follows: 1895, north 50 acres of the conclusion of the trial court that the northwest 14, marked in red ink as follows, notice was in fact left with the clerk on the to wit: "Assessed also to Commercial Na24th of April, which was in time. His fail- tional Bank of Ogden, Utah, vol. 3, page 2." ure to mark the paper on that day as then Marked also in lead pencil on margin of filed is not shown to have been through any book: "Double assessed page 2, vol. 3, T. C., fault of plaintiff's attorney, and we do not Take Cr." 1899, same description and same think plaintiff should suffer from an omis- note in red ink; 1900, fractional northwest sion of the clerk to perform an official duty. 14

50 acres ; 1901, fractional northThe fact that the fee was not paid until west 14 (being north 50 acres); 1902, north May 27th, when the omission was discovered, .30 acres of fractional northwest 14 ; 1903, should not affect the question, for the clerk north 50 acres of fractional northwest 14 ; testified that failure to pay the fee on April 1901, north 50 acres of fractional northwest 24th would have made no difference. In 14. Defendant introduced receipts showing Davis v. Hurgren, 125 Cal. 48, 57 Pac. 684, payments in full of assessments to him. cited by appellant, the clerk refused to file There is but little evidence outside of the notice because the fee was not paid in these official records. It appeared from the advance. Here no fee was demandled, and testimony of defendant and his son, and is there was no refusal to file the notice. Vor uncontradicted, that defendant went into poscan it be reasonably said that plaintiff's session, as found by the court, July 20, 1898. counsel was inexcusably neglectful. The cir- Defendant testified: “I measured the land cumstances are fully set forth in the testi- off myself so as to inclose what I thought mony of counsel and of the clerk, and were was 50 acres and fenced it in. I measured such as to justify the court in treating the 50 acres off of. the north side of the land notice as filed April 24th. Section 173. Code mentioned in plaintiff's complaint. I found Civ. Proc. See, also, Stonesifer v. Kilburn, the stakes at the corner of the land, placed 94 Cal. 33, 29 Pac. 332; Cameron v. Arcata there by the surveyors. I made my measureR. R. CO., 129 Cal. 282, 61 Pac. 9.5.; Jurplay / ments according to each stake.” He also v. Stelling, 138 Cal. 612, 72 Pac. 176.

testified that he has cultivated or pastured Plaintiff and defendant claim through a the land ever since. IIe explained that the common source of title; plaintiff by deed northwest 14 of section 7 became fractional from Lola E. IIill and Oscar E. Hill, dated in the distribution of an estate by a strip July 8, 1893, duly recorded August 15, 1893, being cut off along the east side and a strip and defendant by tax deed of the collector cut off the south side, thus leaving a fracof the Kern & Tulare Irrigation District. tional northwest 14 of 149 acres. He tesdated March 1, 1898. The premises describ- tified that he had never had the land claimed ed in plaintiff's complaint and deed is a tract by him surveyed and never notified plaintiff of land described by metes and bounds, being of his possession; that the land claimed by a part of the northwest 14 of section 7, | him was assessed in 1898, but he did not township 24 south, range 20 east, Mount pay the taxes for that year; that the first Diablo base and meridian, containing 149.0.5 taxes he paid was January 3, 1900, "for the acres. The premises, part of which is claim- taxes assessed to him for the year 1899" ; ed by defendant, as appears from his said that he never paid any of the taxes assessed deed, was assessed for the year 1896 to Lola to plaintiff for any year. It was admitted E. Hill, by the collector of said district, and that the land in question is situated within is described therein as the "Frac. X. W. 14 the boundary of what was a legally conof Section 7, township 24 south, range 26 stituted district, called the "Kern and Tulare east," and that the portion sold to defendant Irrigation District,” under the provisious of for delinquent taxes is described as a “strip the act approved March 7, 1887 (St. 1887, of J0 acres on the north line of fractional p. 41, c. 3t), and the acts supplemental to X. W. 14 of section 7, township 24 south, and amendatory thereot. Defendant testirange 21 east, Mount Diablo base and meridi- fied that he claimed the land through purau." It appears from the assessment rolls chase "on the delinquent assessment of 1896"; that this assessment was "levied to 1893, and that defendant's tax was not levied pay the indebtedness of the district for dis- until 1896. Thus ends the correspondence, organizing. The district had been running and this is substantially all the evidence in several years without levying any assess- the case. ment to pay expenses (the last previous as- Briefly summarized, the court found that sessment was in 1892) and had got con- the land described in plaintiff's complaint siderably in debt; and the assessment was was, in the year 1896, "duly and properly intended to cover, and did cover, all the assessed by the assessor of said district purdebts of the district; the N. W. 14 of section suant to and as required by law * 7, township 24 S., range 26 E., was assessed to Lola E. Hill"; that all the property of to Lola E. Hill, and the taxes were not paid the district was duly equalized in that year, on it, and it was sold for the delinquent | and to pay the outstanding indebtedness of assessment in 1896, in the spring of 1897, and said district its board of directors duly levied I bought the north 50 acres and paid the an assessment upon all the lands therein, inassessment. The tax collector of the irri- cluding the said lands described in plaingation district issued a certificate of sale tiff's complaint; that said assessment on to me, and it was not redeemed, and on plaintiff's said land became a lien thereon March 1, 1898, the tax collector made me a and was never paid ; that on February 27, deed to the land.” Some letters were in- 1897, said property was duly offered for sale troduced by plaintiff, without objection, from to pay said assessment, and defendant bewhich it appeared that on January 23, 1898, came the purchaser of the "north fifty acres defendant wrote plaintiff that he had pur- of the tract of land described" in plaintiff's chased 50 acres of the northwest 14 at delin- | complaint; that said collector of said disquent tax sale, but did not want the land, trict executed and delivered duplicate certifand would deed it to plaintiff for what it cost icate of sale of said property (reciting the defendant. Plaintiff replied that defendant's facts as to said sale), a copy of which was letter was the first intimation it had of any delivered to defendant; that no redemption such irrigation district as defendant men- was made, and said collector on March 1, tioned; that plaintiff's title had been a mat- 1898, executed and delivered to defendant a ter of record since 1893. July 2, 1898, de

deed to said north 50 acres of the land defendant replied, stating further facts about scribed in plaintiff's complaint, which was the district; that the last assessment prior | duly recorded April 16, 1898. The court then to 1896 was in 1892, to Mrs. Lola Hill or Os

finds that defendant entered into possession car Hill, and was paid; that the assessment of said land "under and by virtue of said of 1896 was to Mrs. Lola Hill, to whom no

deed" and constructed a fence inclosing the tices were sent; that he supposed the land said land, and at all times since July 20, belonged to her "until some time ago, being 1898, "he has been in the quiet, peaceable, at the assessor's office in Tulare county, giv- continuous, actual, open, notorious, adverse ing in the list of my property, among which

and exclusive possession of said 50 acres of was the 50-acre piece purchased at delin


cultivating and using the quent sale, I found that the Commercial same

and claiming the same adNational Bank was paying the taxes on the versely to all other persons, for more than N. W. 14, *

whence my communica- five years before the commencement of this tion to you.” He then states: "Now re

action." As conclusion of law the court garding the * *

district, it is out of finds that defendant was the owner of the existence, the people in the district after land in question at the commencement of the having paid some $35,000 in taxes, and the

action and is now such owner. The original district being about $10,000 in debt, and no

complaint was filed June 22, 1901, and the prospect of getting water on the lands of

amended complaint on August 6, 1904. Plainthe district, decided on disorganizing the dis- tiff in its specifications challenges the suffitrict, which could be done legally by first ciency of the evidence substantially as to all paying outstanding indebtedness, and the peo- the findings in defendant's favor. ple voted and authorized the assessment of The reason for granting the motion for a 1896. The assessment was made and col- new trial is not given, but if any sufficient lected, and the delinquent property was sold, reason can be found the order must be afthe same as state and county taxes, and on firmed. If, however, the proceedings leading the 11th day of April, 1898, in the superior up to defendant's tax deed were legal, and a court of Kern county, upon showing that the

valid title passed to defendant thereunder, affairs of the district had been wound up

it is immaterial whether the findings as to according to law and the outstanding debts defendant's adverse possession are supportof the district had all been paid, the court ed by the evidence. Likewise, if title by agreed (decreed?) that the * * * district | prescription is established, the findings as should forever be dissolved." Plaintiff re- to the tax title may be disregarded. It beplied February 5, 1898, stating that the tax comes necessary, therefore, to examine both not having been assessed to plaintiff makes it sources of title upon which defendant relies. void, as defendant will learn by consulting Respondent attacks the findings on the folGwynn V. Dierssen, 101 Cal. 503, 36 Pac. lowing grounds: First, that the assessment 103; called attention again to its deed of in 1896 was made under the disorganizing act of 1893 (St. 1893, p. 523, c. 241), and not tion of the deed." Like provisions are found under the act of March 7, 1887 (St. 1887, p. in the act of 1887. Section 32 of the act of 41, c. 31), and was therefore void because 1887 (also section 50 of the act of 1897) prounauthorized by the act of 1893; second,

vides: "When the land is sold for assessthat the title to the land in 1896, when as: ments, correctly imposed, as the property sessed to Lola E. IIill, stood of record in of a particular person, no misnomer of the plaintiff, and could not legally be assessed owner or supposed owner, or other mistake to any person other than plaintiff: third, relating to the ownership thereof, affects the that the attempted description of the land sale or renders it void or voidable." Under

. claimed by defendant as bid in by him and the provisions of section 3628 of the Political subsequently assessed to him does not def- Code, before its amendment in 1880, it was initely describe any land; fourth, that the held, as in Gwynn v. Dierssen, 101 Cal. 563, whole of the fractional northwest 14 of said 36 Pac. 103, that the assessment must be section was assessed to plaintiff at the time made to the owner, and if not known then the said 50-acre tract was bid in by defend- to unknown owners. But in Escondido H. ant and at all times while subsequently as- S. Dist. v. Escondido Seminary, 130 Cal. 128, sessed to defendant, which latter was a dou- 62 Pac. 401, it was held that an assessment ble assessment and void under section 3607, to a person not the owner does not affect its Pol. Code, and the concurring opinion in validity. To the same effect: Klumpke v. Cavanaugh v. Jackson, 99 Cal. 675, 34 Pac. Baker, 131 Cal. SO, 03 Pac. 137, 676. 509 ; and the facts do not establish title by said in Lake County v. Silver Bank, etc., adverse possession.

Min. Co., 66 Cal. 20, 4 Pac. 876: “The as

certainment of the name of the owner is a The Tax Title Considered.

matter with respect to which the assessor We do not think that the facts warrant has discretionary power, and his judgment the assumption that the assessment

or conclusion in regard to it is final, so far made under the act of 1893. It was doubt- as the validity of the tax is concerned." In less made in anticipation of disorganizing Klumpke v. Baker, supra, the court said : the district, but not as a part of or through “The name of the owner of the property asproceedings for that purpose. The collec- sessed is an incidental provision for the sake tor's deed recites that the levy was made of convenience, but a failure to give the for the year 1896 by virtue and under the correct name of the owner is declared by provisions of the act of March 7, 1887, and the statute not to impair the assessment." its amendatory acts. The letter of defend- Again: "The assessment is not against the ant to plaintiff, relied upon by the latter as owner, but is of the property, and that must showing that the assessment was made un- be correctly described.” And this brings us der the act of 1893, does not purport to be to the remaining question touching the vamore than an outline narrative of certain lidity of the title based upon the tax deed. proceedings, but does not show that the levy The land, as said in the Klumpke Case, was under the act of 1893. The decree of must be correctly described. The descripthe court, dissolving the corporation, was tion must be definite, certain, and intelligible not made until two years later, and could of itself, and not such as to require evidence not then have been made except upon a aliunde to render it certain. Keane v. Canshowing in the complaint and by the evi. novan, 21 Cal. 302, S2 Am. Dec. 738; People dence that the debts of the corporation were v. Mahoney, 55 Cal. 286; People v. C. P. Co., paid. The record is not before us, and we 83 Cal. 400, 23 Pac. 30:3; State v. C. P. R. R. must presume regularity so far as disorgan. Co., 21 Nev. 101, 25 Pac, 412; C. P. Co. v. ization is concerned. By the act of 1897 (St. Nevada, 162 U. S. 525, 16 Sup. Ct. 885, 40 L. 1897, p. 254, c. 159) the assessor was requir- Ed. 1037. “A description sufficiently certain ed to assess all real property in the district to convey land between man and man, and to the persons who own, claim, have the pos- which, if contained in an agreement to consession or control the property, and he must vey, would authorize a court of equity to despecify in the assessment book: “(a) The cree specific execution, will not answer in name of the person to whom the property is the proceeding to enforce the collection of a assessed (if the name is not known to the tax." Blackwell on Tax Titles, p. 124. Deassessor, the property shall be assessed to fendant's deed takes its origin in and must "unknown owners')." Section 48 (page 271) be governed by the description of the least provides: That the matter recited in the quantity of the land which defendant was certificate of sale must be recited in the deed willing to take and pay the assessment. and such deed duly acknowledged or proved This description reads as follows: “Strip is prima facie evidence that: "(a) The of 50 acres on the north line of fractional property was assessed as required by law; N. W. 14 of section 7,etc. We do not think

(c) that the assessments were lev- that this description meets the requirements ied in accordance with law"; and "such of the rule above stated. Quantity is the deed * * * is (except as against actual least certain element of description and is fraud) conclusive evidence of the regularity no description at all unless a definite and of all the proceedings from the assessment certain basis for its ascertainment is supby the assessor inclusive, up to the execu- plied. The north line of the 50-acre tract

91 P.-48

taken is not necessarily coincident with the second or double tax he has caused to be as entire north line of the northwest 14. The sessed to himself, the latter cannot claim description only calls for 50 acres on that compliance with the statute. This view line, but not along its whole length. If makes it unnecessary to consider the other plaintiff and defendant had been bargaining questions arising out of the facts connected for 50 acres on the north line, parol evidence with defendant's claim of adverse possesmight have been admissible to show their sion. The prior payment of the tax by intention, but not so in tax proceedings, in plaintiff for the year 1903, not to mention their nature in invitum. The rule has been the payment by both parties on the same laid down that, where a given acreage is day for the year 1904, interrupted the runsold "off the side of a quarter section," it ning of the statute of limitations, and demust be taken in a parallelogram, and when fendant had not completed the requisite adout of the corner it must be taken in a verse occupation when the action was comsquare. 4 Am. & Eng. Ency. of Law, p. 789. menced. Even this rule could not have been applied The order is affirmed. owing to the irregular shape of the fractional tract out of which defendant sought to We concur: HART, J.; BURNETT, J. take the 50 acres. The uncertainty of de scription was attempted to be corrected in

(6 Cal. A. 204) subsequent assessments, but obviously this cannot avail defendant as supporting his tax

MENZEL Y. PRIMM et al. (Civ. 346.) title, however much it may assist his claim (Court of Appeal, Third District, California. by prescription.

Aug. 6, 1907.)

1. VENDOR AND PURCITASER-OPTIONS. The Title by Adverse Possession Considered. Even if a contract by which plaintiff agreed

to sell mines to C. for $7,500, of which $3,500 The title by prescription turns principally was to be paid at a certain time and $4,000 upon the payment of the taxes by defend- later, was an option, yet the transaction beant. It was shown that plaintiff paid the

came one of sale on $1,000 being paid, and

plaintiff executing an agreement reciting that, taxes levied and assessed upon the fractional

whereas, there was then “due and owing" northwest 14 of section 7 for the years 1897 $2,500 on the claim, he agreed to accept in lieu to 1904, inclusive; that defendant had the thereof the note of C. and another of even date land claimed by him assessed for 1898 and

for that amount payable 60 days later.

(Ed. Note. For cases in point, see Cent. Dig. thence each year to 1904, inclusive, and paid

vol. 48, Vendor and Purchaser, $ 3.) the taxes for each year except 1898. But

2. PAYMENT_PAYMENT BY NOTE. plaintiff paid the tax on all the land for

Where, when a payment on plaintiff's con1903 on October 23, 1903, while defendant tract of sale of a mine to C. became due, he did not pay the tax on the tract separately

executed an agreement reciting that, whereas, assessed to him until November 23, 1903, and

there was then due and payable $2,500, he

agreed to accept "in lieu of the sum of $2,500" the tax for the year 1904 was paid by both a note of even date signed by C. and P., payparties on the same day, November 18, 1904. able in 60 days, with interest, said note was not Whether the adverse occupant of land may

taken in payment, but as evidence of the in

debtedness payable at maturity of the note. have it assessed to himself while it is as

[Ed. Note.-For cases in point, see Cent. Dig. sessed also to the true owner, and may com- vol. 39, Payment, § 70.] ply with section 325, Code Civ. Proc., by pay- 3. PLEADING-ANSWER-CONSTRUCTION. ing this double or second tax when for the The allegation of the answer, in an action same years the true owner also pays the tax, on a note, that the note was given in payment, is a question not satisfactorily or clearly

which was contrary to defendant's contention

in the case, and at variance with the language settled by our Supreme Court. In Cava

of the instrument under which the note was naugh v. Jackson, 99 Cal. 672, 1 the main opin- taken, and with the facts as disclosed, will be ion seems to answer the question in the af

treated as an attempted statement that the note

was given as an evidence of the indebtedness firmative. But in a concurring opinion, Mr.

payable at maturity of the note, as was the fact. Justice Harrison, one of the three judges

[Ed. Note.-For cases in point, see Cent. Dig. who pronounced judgment, dissented from vol. 39, Pleading, $ 66.] the view of the majority and concurred on- 4. BILLS AND NOTES-DEFENSE AVAILABLE TO ly on the ground that the adverse occupant SURETY. paid the tax before the true owner paid it.

A surety on a note may, as against the origWhen the reasoning of the dissenting opin

inal payee, defend on the ground of absence or

failure of consideration. ion is considered, together with some state- [Ed. Note.-For cases in point, see Cent. Dig. ments in Hayes V. County of Los Angeles, vol. 7, Bills and Notes, $$ 163, 164.] 99 Cal. 74, 33 Pac. 766, and the decision in 5. VENDOR AND PURCHASER-ACTION FOR PARCarpenter v. Lewis, 119 Cal. 18, 50 Pac. 925,

TIAL PAYMENT-TENDER OF DEED. is also taken into consideration, it must be

Where a contract of sale of land, for a cer

tain sum, payable in installments, is silent as apparent that the soundness of the Cava

to time of delivering a deed, it should be tendernaugh decision is to some extent at least to ed before action can be maintained on a note be doubted. Ilowever this may be, it seems

given for one of the installments. quite clear to us that, where the true own- Appeal from Superior Court, Shasta Couner pays the tax upon an assessment to him- ty; C. M. Head, Judge. self before the adverse claimant pays the Action by William Menzel against F. R.

* 34 Pac. 09.

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Primm and another. From an adverse judg. ment, plaintiff appeals. Affirmed.

Reid and Dozier, for appellant. T. W. H. Shanahan and Chas. H. Braynard, for re: spondent Primm.

HART, J. This action was brought by the plaintiff to enforce the payment of a promissory note for the sum of $2,500, made and delivered on the 28th day of May, 1903, by the defendants, and payable 60 days after date. The defendant, Chambers, was not served with process and made no appear.

The case was tried before the court, a jury having been waived by the parties, and judgment awarded to the defendant and respondent Primm. This appeal is from said judgment and the order refusing plaintiff a new trial.

The note which is the foundation of the action was the outcome of a certain agreement in writing, dated the 13th day of February, 1903, under the provisions of which the plaintiff, on certain specified terms, agreed to sell certain mining claims to the defendant Chambers for the sum of $7.500, of which the sum of $3,500 was to be paid on or before the 24th day of March, 1903, iind the remainder, $4,000, on or before the 24th day of September, 1903. The agreement provided that Chambers should have immediate possession of said mining claims for the purpose of working, mining, and developing the same, and said Chambers agreed to "put two men to work thereon within 60 days" from the date of the agreement. Chambers was given the right to extract ores from said mining claims, but was to leave all ores so extracted upon the dump, save and except such amounts as may be necessary for assay and sampling purposes." The agreement also stipulated that the "party of the second part (Chambers) shall have the use of a boiler now on said premises,” and also "the use of the lumber and timber belonging to said mining property, and, in the event of the sale of said property, will pay to said party of the first part the sum of $250 for the timber and lagging now on the ground on said premises.” And the parties finally agreed that, in the event the party of the second part shall fail to purchase said property, he shall have the right to remove all machinery which he may have placed on said mining ground. On the 26th day of March, 1903, plaintiff and Chambers entered into a second written agreement, by the terms of which the time for the making of the first payment, $3,500, was extended to the 24th day of April, 1903, or 30 days from the 24th day of March, 1903, on which day said payment was, as originally agreed, to be made. On the 21st day of April, 1903, a third written agreement was made by plaintiff and Chambers, whereby plaintiff released said Chambers from the obligation of paying said sum of $3,500 on the said 24th day of April, 1903, as provided in the agreement

of the 26th day of March, 1903. In that agreement, mentioned as the third, plaintiff agreed to accept from said Chambers, in lieu of the $3,500 which the latter had promised to pay plaintiff on said 24th day of April, the sum of $1,000 in coin and the further sum of $2,500, to be paid on the 24th day of May, 1903. A fourth agreement in writing was made by the parties on the 28th day of May, 1903, by which the plaintiff agreed to accept from Chambers a promissory note for $2,500 in the place and stead of that amount of money which Chambers had agreed to pay plaintiff on the 28th day of May, 1903. Said note was executed by Chambers and the respondent, and is the instrument upon which this suit is based. The second, third, and fourth agreements to which we have just referred continued in force all the stipulations, covenants, and conditions contained in the original agreement, save and except only the portion thereof stipulating as to the times of the payments of the money which the second party agreed to pay for said property.

The answer alleges that on the 15th day of April, 1903, Chambers entered into a written agreement with one T. S. Henderson, of St. Louis, Mo., under and by which said Chambers, for and in consideration of the sum of $25,000, agreed to sell and convey to said Henderson all the mining claims mentioned in the agreement between said Chambers and the plaintiff, and said Henderson agreed to purchase the same for said sum, whereof $5,000 was to be paid upon the making of said agreement and $5,000 on the 15th day of September, 1903, and the balance to be paid in installments of $5,000 at the expiration of every six months thereafter until the full purchase price was paid. The answer further alleges that, on the 10th day of August, 1903, the plaintiff and the Great Western Gold Mining Company, a corporation, of which said T. S. Henderson was president and the financial agent, and who had the general management and control of all the business affairs of said corporation, entered into a written agreement, by the covenants of which plaintiff agreed to sell and convey by a good and sufficient deed to said corporation, and the latter agreed to buy, the mining claims mentioned in the original agreement between the plaintiff and said Chambers for the sum of $7,000, to be paid in certain specified installments; and it was further agreed by plaintiff that said corporation and its assigns might immediately, upon the execution of said agreement, enter into and take possession of said mining claims. It is also alleged in the answer that the agreement so entered into between the plaintiff and the said corporation "was made and entered into for the purpose and with the intent that neither said Great Western Gold Company or the said T. S. Henderson, either individually or as president, fiscal agent, and the person who had general charge and management of the affairs of said company,

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