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O'Grady v. Barnhisel

Supreme Court of California
Oct 1, 1863
23 Cal. 287 (Cal. 1863)


[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          Rehearing Granted 23 Cal. 287 at 296.

         Appeal from the District Court, Seventh Judicial District, Contra Costa County.


         If the real estate to be assessed or listed has an owner, who is known to the Assessor, (and who may in most cases be known to him, if he seeks by diligent inquiry and examination to ascertain his name,) it should be assessed to him. Or if the owner be unknown to the Assessor, but the property is in the possession, charge, or control of a person, firm, or corporation, it should be so listed. If the owner be unknown to the Assessor, and the land is unoccupied, then, and not until then, can the Assessor lawfully assess or list the same as the property of an unknown owner.

         The premises demanded in this case were listed and assessed, as appears by said certificate to " Joaquin Castro and wife, and all claimants and owners, known or unknown." Who, from this designation, could determine to whom the land was assessed? Was it assessed to Castro and wife, or to the claimants and owners known, or to the claimants and owners unknown? To which of the three classes of persons, andwho were " all claimants and owners known?"

         Again: Another objection to the certificate and tax deed, rendering the same radically insufficient as prima facie evidence of title to the premises in the purchaser at the tax sale, consists in the fact that the matters which the statute requires should be stated in the certificate, (Sec. 18,) and again stated in the deed, (Sec. 22,) are not stated except in general terms, following almost literally the language of the statute. The statute (Sec. 18) provides that the Tax Collector shall issue to the purchaser a certificate stating substantially the facts constitutive of the authority of the Tax Collector to sell and convey the premises, among which are, that the property was assessed, giving (when known) the name of the person to whom it was assessed; that taxes were levied upon it according to law; that these taxes had not been paid; that publication of the intention to sell for taxes was made, as provided by law, and describing the manner of said publication, etc. The Tax Collector seemed to content himself with a statement in his certificate and deed, that " Taxes for State and County purposes were duly levied by the Legislature, and by the Board of Supervisors of Contra Costa County, for the year 1858-1859, upon all property within said county, not exempt by law from execution; " also that " all of said property was duly assessed by the Assessor of said county," and that the premises in controversy, according to the duplicate assessment roll, " were assessed, as aforesaid, to 'Joaquin Castro and wife, and all claimants known or unknown,' and that the taxes thereon were not paid; " and also " that on the Saturday next preceding the third Monday in November, 1858, I completed a list of all persons and property then owing any taxes, called the delinquent tax list; and on or before the fourth Monday in the said November, I caused said list to be published, giving, in said publication, the name of the owner, (when known,) and of all owners and claimants known or unknown."

         Perhaps no doctrine is better settled than that no intendment is to be made in favor of the regularity of proceedings of courts or officers of inferior or special jurisdiction. (Whitwell v. Barbier , 7 Cal. 64; Haynes v. Meek , 10 Id. 116; Foot v. Stevens, 17 Wend. 483; Hart v. Seixas , 21 Id. 40; Bloom v. Burdick, 1 Hill, 139; Sharp v. Spier, 4 Hill, 86; Striker v. Kelly , 7 Id. 25, 29; Borden v. Fitch, 15 Johns. 121; Mills v. Martin , 19 Id. 7; Bigelow v. Stearns, Id. 39; Jones v. Reed, 1 Johns. Cas. 20.)

         The recitals in a tax deed are not, unless made so by statute, evidence against the owner of the property; but the facts recited must be proved by evidence aliunde, and the onus probandi rests upon the purchaser, or those claiming under him, to prove the facts upon which his alleged title depends. (See Sharp v. Spier, and Striker v. Kelly, supra; Blackwell on Tax Titles, 93, 94, and the many cases there cited.) But it may be answered to the argument and authorities on this point, that our statute makes the tax deed which contains a substantial statement of the matters stated in the certificate prima facie evidence of title in the grantee, and even conclusive evidence of the matters by it set forth. This may be even so; yet, nevertheless, it is not any the less necessary that the facts constitutive of the power to sell and convey, and on which the purchaser's right and title is made to depend, should be proved. The statute has not shifted the burden of prooffrom the party who would sustain such right and title; but has furnished a different mode of proof, by proving that a certificate shall be made by a certain officer, embodying a statement of essential facts, which, with others that must transpire subsequently, before a conveyance can be made, shall be, by the same officer, set forth in the tax deed; and that this deed, containing therein a statement of the performance of the acts and the occurrence of the facts which operate to divest the owner of his estate, and transfer it to the purchaser, shall be the witness; or, in other words, the evidence of the performance of such prerequisite acts, and the occurrence of the essential facts. Such deed, bearing witness of the essential acts and circumstances, must be produced by the party relying upon it; otherwise, he must share the fate of all litigants who fail to prove what they allege.

         Neither the certificate nor deed, under which plaintiff claims the land, shows that taxes were levied on it according to law. It is not enough for the Tax Collector to certify, in terms, that taxes were levied on the land according to law. He should state what was done and when done. If it was undertakento be done after the first Monday of March, then taxes were not levied according to any law. (Act of 1857, 339, Sec. 42.)

         Would any Court tolerate the assumption of an inferior officer in declaring that that was done according to law, which a Court of superior jurisdiction would not so determine without evidence of it? Unless taxes were levied on this land as required by the statute, the tax did not become a judgment against the person, or a lien against the property; because before then the tax must have been levied as provided by this act. By a line of decisions that have hitherto stood unbroken, the law has been firmly established, that in order to divest the owner of his land, and transfer it to another by means of sales for taxes, it is essential that every act and thing constitutive of the officer's authority to sell, must precede its exercise. (4 Wheat. 77; 6 Id. 119; 4 Hill, 86; 7 Id. 29; 1 Leigh, 250, 251; 10 Cal. 632; 13 Id. 618; Blackwell on Tax Titles, 45-60.) Otherwise the sale is coram non judice and void.

         The twenty-third section of the act says the deed shall be conclusive proof of the matters by it set forth. Is the statement of the Tax Collector in thecertificate and deed, that " by virtue and authority of law, and according thereto, taxes for State and county purposes were duly levied by the Legislature, and by the Board of Supervisors for Contra Costa County, for the years 1858-1859, upon all the property within said county not exempt by law from execution; that all said property was duly assessed by the Assessor of said county," the setting forth any matter of fact done and performed by the Supervisors or Assessor? An officer who certifies that a series of acts were done according to law, or duly or legally done, does not state any traversable fact. Such words in pleading have in general no effect. For such terms are not only indefinite, but offer matter of law instead of fact, and consequently are not traversable. (Gould's Plead. 182, Sec. 29.)

         John Currey, for Appellant.

          E. W. F. Sloan and George Cadwalader, for Respondent.

         JUDGES: Cope, J. delivered the opinion of the Court, Field, C. J. and Norton, J. concurring.


          COPE, Judge

         After the foregoing opinion had been delivered, a rehearing was granted.

         Upon the rehearing, Crocker, J. delivered the opinion of the Court. Norton, J. concurring.

         In this case a rehearing was granted, and it has again been submitted upon some additional questions not directly passed upon in the former opinion. We adhere to the principles there laid down, and it will therefore be considered as forming part of the present opinion.

         Upon the rehearing it was urged that the amount for which the property was sold exceeded the amount of taxes and costs actually due in the sum of five and one-half cents, which is estimated as follows: Amount of taxes, fifty-two dollars and fifty cents; five per cent. thereon for delinquency, two dollars and sixty-two and one half cents; statute allowance for certificate of sale, two dollars; costs of advertising the property, fifty cents. Total amount the property should have been sold for, fifty-seven dollars and sixty-two and one-half cents; amount for which the property was sold, fifty-seven dollars and sixty-eight cents--making an overplus of five and one-half cents. But the respondent insists that there should be included in the estimate of taxes and costs the sum of fifty cents for filing the certificate of sale in the Recorder's office, as required under Secs. 20 and 21 of the Revenue Law of 1857, under which the property was sold, and that by adding this sum to the other amounts of taxes and costs, the result will be that the property sold for forty-four and one-half cents less than the amount really due. We do not think this item is a proper one to be included in the amount for which the property was to be sold. Sec. 17 of the act in question provides that the person who will take the least quantity of the tract or the smallest portion therein of the interest taxed, and " pay the taxes and costs due, including two dollars which the Tax Collector shall be entitled to receive for the duplicate certificate of sale, shall be declared to be the purchaser." The evident meaning is, that the purchaser shall pay the " costs due," at the time of the sale, as any other costs cannot properly be said to be " due; " and as it specially includes only the costs of the certificates, which accrued after the sale, it is clear that it was not intended to include any other subsequent costs. It follows that the fees of the Recorder for filing the certificate should not be included. Those fees are for the purchaser to pay when he files his duplicate certificate with the Recorder, as the filing is for his benefit.

         The respondent insists, however, that the overplus in this case is so small that the sale should not be invalidated on that ground, and that the maxim de minimus non curat lex is properly applicable. We are satisfied that we ought not to treat the sale as void for this trifling excess. If we could in any way see that the owner of the land had suffered any injury by the mistake in the estimate by the Tax Collector of the amount due, it would be very different. The tract assessed for taxes, the whole of which was bid off by the purchaser at the tax sale, includes, it seems, about two hundred acres; and it can hardly be presumed that the purchaser would have bid for a less quantity had the amount been stated at the trifling sum of five and one-half cents less. The mistake may have occurred in the calculation, or it may have been occasioned by an error in making or copying the figures; but it is evident that it was unintentional, and without any design to injure the parties interested. If the owner of the property had offered to redeem it within the time prescribed by law, and had tendered the amount really due at the time of the tax sale, with the proper statutory allowances, his redemption would have been good, though he should have omitted in his tender this excess in the sale; but no such tender was made. If this had been a sale under an ordinary judgment and execution, it could not be pretended for a moment that the sale would have been void on this account. It is true, that the mode of selling property at a tax sale is different from an ordinary sale on execution; but that difference is not sufficient to hold a tax sale void for so trifling a matter. Sec. 32 of the Act of 1857 provides, that every tax levied under the provisions or authority of this act is hereby made a judgment against the person and a lien against the property assessed; which lien shall attach, and judgment date, as of the first Monday in March of each year, and shall have the full force and effect of an execution against all property of the delinquent," etc. It is evident that the Legislature intended by this provision to subject sales of property to the same legal rules as govern sales to enforce judgments and liens against property in the ordinary course of legal proceedings, although the mode of bidding is different. In New Hampshire, executions are extended upon the real estate by appointing appraisers, who set off to the judgment creditor a sufficient quantity of the land to pay the amount due on the execution at its appraised value, which operates as a conveyance of the property and a satisfaction of the judgment without any sale at public auction; and the Courts there hold that such extent is not void because the appraised value of the land thus set off exceeds by a trifling sum the amount due on the execution. ( Burnham v. Aiken , 6 N.H. 307; Avery v. Bowman , 40 Id. 453.)

Summaries of

O'Grady v. Barnhisel

Supreme Court of California
Oct 1, 1863
23 Cal. 287 (Cal. 1863)
Case details for

O'Grady v. Barnhisel

Case Details


Court:Supreme Court of California

Date published: Oct 1, 1863


23 Cal. 287 (Cal. 1863)

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