[L. A. No. 816. Department One.-September 30, 1901.]

FRANK ELLIS et al., Respondents, v. H. C. WITMER et al., Appellants.

STREET-IMPROVEMENT ADVERTISEMENT FOR BIDS-ORDER TO READVERTISE-DESIGNATION OF NEWSPAPER.—Where the original notice for bids was properly advertised and posted, a subsequent order to readvertise for bids, without designating any newspaper, must be construed as referring to the original order for its terms.

ID. NECESSITY FOR READVERTISEMENT-LIMITATION OF TIME-PRESUMPTION.-A readvertisement for bids is not necessary, unless the original order limited the time for bids; and it cannot be presumed that a time was limited therefor, where it is not so made to appear. ID.-ANTEDATED BOND FOR UNPAID ASSESSMENTS-DELAY IN MINISTERIAL ACTS.-The bonds to be issued by the city treasurer for the amount of unpaid assessments should be issued and dated at the expiration of the thirty-days' credit allowed by the Street-improvement Act from the date of the warrant; and where, by reason of delay in the ministerial acts to be performed by the city treasurer, a bond was not issued until after that date, it was properly dated as of the date when it should have been issued. ID.-SALE UNDER DELINQUENT BOND-IRREGULARITIES-RELIEF IN EQUITY-PAYMENT OF SUM DUE.-Where it appears that the assessment and bond were valid, a sale under a delinquent bond cannot be annulled in equity for irregularities in selling under the bond for an excessive amount, or upon insufficient notice, or at an improper place, or upon a defective certificate, unless on condition of paying the sum due. Where no such condition was imposed by the court, and there is no offer in the complaint to pay what is due, a judgment annulling the sale must be reversed.

ID. SALE FOR PRINCIPAL AND INTEREST OF BOND.-A sale for the principal and the interest of the bond to the date of sale is not for an excessive amount. The bond does not cease to bear interest after it becomes delinquent.

ID. INSUFFICIENT NOTICE OF SALE-PERSONS DELINQUENT NOT NAMED. -A notice of sale, not conforming to the requirements of section 41 of the act of 1891, and of section 3764 of the Political Code, referred to in the Street-improvement Act, and omitting the names of the persons delinquent, is fatally insufficient. The fact that the names of the persons delinquent cannot be ascertained from the bond is not material, since they can be ascertained from the proper records.

ID.-PLACE OF SALE.-The place of sale under a delinquent bond, assuming that it was to be determined by the provisions of section 3768 of the Political Code as it stood prior to its repeal, must be "in front of the court-house, or in front of the tax-collector's of

fice," as the board of supervisors may by resolution have directed, for all state and county taxes. The board cannot authorize such sales to be made "in the tax-collector's office."

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Waldo M. York, Judge.

The facts are stated in the opinion of the court.
Lynn Helm, for Appellants.

Goodrich & McCutchen, for Respondents.

THE COURT.-Appeal from a judgment for the plaintiffs and from an order denying the defendants' motion for new trial.

The plaintiffs are the owners of a tract of land in the city of Los Angeles, described in the complaint, on which a streetassessment had been levied, and a bond issued to one Donegan, to secure the same, under the provisions of the Streetimprovement Act of March, 18, 1885, as amended March 17, 1891 (Stats. 1891, p. 116), and the bond having become delinquent, the property was sold by the city treasurer, and the certificate of purchase assigned to the defendant Witmer. The suit was brought to annul the assessment, bond, and certificate of sale, and to enjoin the issue of a deed by the

treasurer.

On the trial the only evidence introduced by the plaintiff's was "the stipulation of counsel that between the nineteenth day of December, 1892, and the first day of January, 1893, the city treasurer of the city of Los Angeles made out and signed said bond set forth in the amended complaint of plaintiffs, and thereafter, on the third day of January, 1893, delivered the same to the said Donegan." On behalf of the defendants, evidence was offered to the effect that on or about June 9, 1893, in an action brought by Witmer Brothers, the city treasurer was enjoined from making a sale of an undivided five-eighths of the premises assessed, pursuant to notice to the treasurer given by Donegan, March 23, 1893, and that the injunction was not dissolved until November 29, 1897. It was also stipulated, in effect, that at the time of the assessment and issue of the bond the title to an undivided fiveeighths of the premises assessed stood in the name of one Sullivan, and the remaining three-eighths in the grantors of

the plaintiffs, and that the partition of the land-by which the plaintiffs became the owners in severalty of the land described in the complaint-took place after the bond was issued. This was the only evidence in the case, and it is conceded by the respondents that it was insufficient to sustain some of the findings. But it is claimed that the judgment is sustained by the admitted facts of the case, and that, as the result could not be changed on a new trial, there was no error in refusing it. The points made by the respondents are,-1. That there was no sufficient order for the publication of notice for bids; 2. That the bond .... was invalid, because antedated; 3. That the sale was void for various reasons, and the certificate of sale invalid; and 4. That the special defense set up in the answer is insufficient, and not sustained by the evidence. The facts relating to the several points will be stated as we consider them.

1. With regard to the advertisement for bids, there were three publications, all in the Los Angeles Times. The first was under the ordinance, or an order, directing publication in that paper, and posting, and was admittedly sufficient. The others were published and posted under subsequent orders of the council, directing the clerk "to readvertise for bids" for the work. The Donegan bid was received subsequently to the last publication; and it is claimed there was no sufficient order designating the newspaper for the publication, etc., as required by section 5 of the Vrooman Act. But it is not disputed that the first order was sufficient, and-assuming that another order was necessary-the subsequent order to readvertise, we think, must be construed as referring to the original order for its terms. This is the most obvious and natural construction of the order; and no reason can be suggested why it should be so construed as to make it void. The cases cited by respondents' counsel have, therefore, no application. In none of them was there any order directing the publication. (Meuser v. Risdon, 36 Cal. 239; Chase v. Treasurer etc., 122 Cal. 545; Donnelly v. Tilman, 47 Cal. 40; Donnelly v. Marks, 47 Cal. 187; City of Napa v. Easterby, 61 Cal. 509.) It may be added that, as the case is presented, it does not appear that, after the first, any other order or publication of notice was necessary. All that is required by section 5 of the Vrooman Act is that the notice should be once published. There is no provision for republication, except in the special case provided for; nor is it required that the notice should limit the time within which bids would be

received. No doubt, it was competent for the council to prescribe such limit; and, perhaps, had such a limit been prescribed, a readvertisement would have been necessary. But in the case as presented it does not appear, nor can it be assumed, that a time was limited for the reception of bids.

2. The objection to the date of the bond is untenable. Under the provisions of section 10 of the act, it is the duty of the street superintendent, upon the return of the warrant, to record it forthwith, and under the provisions of section 40, thereafter, and after the expiration of thirty days from the date of the warrant, to certify a complete list of the unpaid assessments (amounting to fifty dollars or more) to the city treasurer, whose duty it is, "thereupon," to make out and issue the bonds. Assuming the warrant to be returned within thirty days of its date, and that the officers act promptly, the bonds will be issued on expiration of the thirty days from the date of the warrant, and they must be regarded, therefore, as due on that date. Naturally, however, and often from necessity, delays will occur; and such were doubtless contemplated by the statute. But it cannot be supposed that it was the intention of the legislature that the rights of the contractor should be affected thereby. The case is therefore one for the application of the doctrine of relation, and the bond, whatever be the date of its actual issue, must be regarded as taking effect, and may therefore be dated as of the date of its proper issue. (Gibson v. Chouteau, 13 Wall. 101.) And this is very clearly implied in the form of the bond given in the act, which makes the interest and the term of the bond to run "from its date." Hence, in order to give effect to the assessment,-which, "with accrued interest," is declared to be a lien upon the property affected thereby, the bond must necessarily be dated as of the date on which the assessment becomes due. This, in ordinary cases, is the date of the return of the warrant, after which it is provided that the amount unpaid shall draw interest at ten per cent per annum. (Vrooman Act, sec. 10.) But in the case under consideration the period for payment is extended to the expiration of thirty days from the date of the warrant, which must therefore be regarded as the date of the maturity of the assessment. In the case at bar, the date of the warrant was November 4th, and of its return, December 3, 1892; and the issue of the bond was therefore due December 5, 1892;

and though by reason of delay in the ministerial acts to be performed the bond was not made out and issued until some time afterwards, it was properly dated as of that date.

3. The sale is attacked on the grounds, that the amount for which the land was sold was excessive; that the notice of sale was insufficient; that the place of sale was not as prescribed by law; and that the certificate of sale is defective. But there is a preliminary objection that must be first considered.

The assessment and bond being valid, it appears that the plaintiffs are indebted for the amount assessed, or such proportionate part of it as may correspond to their land. This being the case, they cannot successfully invoke the assistance of a court of equity against the irregularities in the sale complained of, unless on the condition of paying what is due from them. (Esterbrook v. O'Brien, 98 Cal. 671; Quint v. Hoffman, 103 Cal. 506; Hellman v. Shoulters, 114 Cal. 137; Weber v. San Francisco, 1 Cal. 455.) Here, no such condition has been imposed by the court, nor is there an offer in the complaint to pay what is due. The plaintiffs were therefore not entitled to relief. The decision in Chase v. Treasurer etc., 122 Cal. 540, does not conflict with this conclusion. In that case the point was made that there was no tender of the tax, and was overruled; but the ground of the decision was, that the assessment was void, and consequently there was no tax to be tendered. (Chase v. Treasurer etc., 122 Cal. 544, 545.)

On this account the judgment must be reversed. But, on the case being remanded, the plaintiffs may, if so advised, amend their complaint by offering to pay into the court such portion of the tax as may be determined by the court to be due upon their land, which, as the case is now presented to us, would seem to be three eighths of the whole, though we are not to be understood as definitely determining this point. In the case of such amendment, the obligee in the bond, D. F. Donegan, or his representative, should be made a party defendant, in order that the right to the money, as between him and the defendant Witmer, may be determined. Though this will be unnecessary, if it be shown that the defendant Witmer has succeeded to the interest of Donegan in the bond. If the complaint be not amended, judgment should be entered for the defendants. In view of the conclusions we have reached, it will be unnecessary to determine the objections to