From Casetext: Smarter Legal Research

Hall v. Theisen

Supreme Court of California
Oct 9, 1882
61 Cal. 524 (Cal. 1882)

Opinion

         Appeal by plaintiff from an order of the Superior Court of the County of El Dorado, dissolving a preliminary injunction. Williams, J.

         COUNSEL

          D. L. Smoot and John H. Miller, for Appellant.

          Thomas V. O'Brien, Jarboe & Harrison, and George G. Blanchard, for Respondents.


         JUDGES: Myrick, J. Ross and McKinstry, JJ., concurred. McKee, Thornton and Sharpstein, JJ., concurred in the judgment on the ground that the plaintiff has an adequate remedy at law.

         OPINION

          MYRICK, Judge

         In Bank. This action was brought to obtain an injunction restraining the defendants from selling certain real property under an execution. The plaintiff claimed under a tax sale and deed; the defendants were proceeding to sell under an execution against the prior owners. The defendants demurred; the demurrer being sustained, and no amendment made, judgment went for defendants. A preliminary injunction having been issued, the same was dissolved.

         The tax deed is void, it being therein recited that the property was assessed to " California Consolidated Mining Company and to all owners and claimants known and unknown." (Hearst v. Egglestone , 55 Cal. 365.)

         The complaint alleges an assessment of the property to the California Consolidated Mining Company, omitting the objectionable addition expressed in the deed. It may be admitted that if the plaintiff holds a valid certificate of sale for nonpayment of taxes, he may have the sale under execution enjoined, on the ground that such subsequent sale would be a cloud upon his title or his right to have title. But, in endeavoring to have the sale enjoined, he must aver and show that he has full right to protection; in other words, that everything has occurred which would be necessary to occur in order to vest in him the right claimed. The allegation in the complaint as to the tax sale is that the property " was duly sold to satisfy the aforesaid taxes, at public auction, by the Tax Collector of said County of El Dorado, to A. Mierson, to whom a certificate of said sale was delivered by said Tax Collector." There is no allegation that either of the steps referred to by Sections 3766, 3767, or 3768, Political Code, had been taken. Section 3776 declares that the certificate of the sale shall state certain matters. There is no allegation that the certificate stated either of those matters. The allegation in the complaint is that " a certificate of said sale was delivered," etc. We have not been referred to any provision in the Code which makes the certificate evidence of any matter not therein stated, nor of any matter necessarily preceding its valid existence.

         This appeal is from the order dissolving the injunction. The order is affirmed.


Summaries of

Hall v. Theisen

Supreme Court of California
Oct 9, 1882
61 Cal. 524 (Cal. 1882)
Case details for

Hall v. Theisen

Case Details

Full title:ISAAC R. HALL v. JOHN THEISEN et al.

Court:Supreme Court of California

Date published: Oct 9, 1882

Citations

61 Cal. 524 (Cal. 1882)

Citing Cases

City of Santa Barbara v. Eldred

The complaint is defective because it fails to allege that defendant owned the property assessed to him on…