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Axtell v. Gerlach

Supreme Court of California
Sep 25, 1885
67 Cal. 483 (Cal. 1885)


         Department One

         Appeal from a judgment of the Superior Court of San Joaquin County.


         J. C. Campbell, and D. S. & S. L. Terry, for Appellants.

          J. B. Hall, and W. L. Dudley, for Respondent.

         JUDGES: Foote, C. Searls, C., and Belcher, C. C., concurred.


          FOOTE, Judge

         Action to quiet title. Appeal from a judgment made therein.

         The certificate of sale issued by the tax collector was properly ordered to be canceled; the sale was void because the land was sold for a sum greater by one dollar than was authorized by law. (Harper v. Rowe , 53 Cal. 236; Treadwell v. Patterson , 51 Cal. 637.)          There was nothing in the law which imposed a tax in invitum upon property, which gave the right to charge this additional sum, viz., fifty cents for cost of preparing a delinquent list, and fifty cents for cost of certificate of sale. (See "act to provide for the protection of lands from [8 P. 35] overflow other than lands recognized as swamp lands." Stats. 1880, ch. 128, p. 227.)

         Those two charges were not authorized as a part of the manner in which the sale was ordered to be made. (§ 9 of said act, and Bucknall v. Story , 36 Cal. 67.) And further, that act itself in section 11, makes express provision for the payment of the tax collector, and does not seem to contemplate that the land-owner or his property shall be responsible therefor. And the purchaser was not entitled to a decree ordering the land-owner to reimburse him for money paid out. (Harper v. Rowe, supra .)

         It is contended that the certificate of sale being void upon its face the deed, the making of which it was sought to enjoin, would be void on its face, and therefore an injunction ought not to have been granted, as no cloud on plaintiff's title would thereby appear.

         Section 3776 of the Political Code does not require that the certificate of sale shall specify the particulars of the "amount paid," or the "amount of the assessment." Non constat, therefore, that the deed would necessarily do so if executed, and if it did not, then evidence would be required dehors the recitals of the deed to ascertain the illegality of any of the items, to collect which the sale was made, and a cloud would thus be cast on the title.

         But upon the supposition that the deed itself when executed may properly show the purchaser's title to be void and no actual cloud rest on the plaintiff's title, yet under section 738 of the Code of Civil Procedure, this action to cancel the certificate is a proper one. (Hearst v. Egglestone , 55 Cal. 365; Harper v. Rowe, supra ; People v. Center , 66 Cal. 551.)

         The injunction is for the purpose of making effective the judicial determination of the invalidity of the defendant's adverse claim, "of an estate or interest in" the plaintiff's land. And as a means to attain that end and prevent further controversy if the deed should be executed and delivered, the injunction was granted and the judgment should not be reversed on that account. (Brooks v. Calderwood , 34 Cal. 563.)          It would serve no useful purpose to determine other questions raised in the case, and we are of opinion that the judgment of the court below should be affirmed.

         The Court. -- For the reasons given in the foregoing opinion the judgment is affirmed.

Summaries of

Axtell v. Gerlach

Supreme Court of California
Sep 25, 1885
67 Cal. 483 (Cal. 1885)
Case details for

Axtell v. Gerlach

Case Details

Full title:S. H. AXTELL, Respondent, v. LOUIS GERLACH et al., Appellants

Court:Supreme Court of California

Date published: Sep 25, 1885


67 Cal. 483 (Cal. 1885)
8 P. 34

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