Bell v. Brigance

STURTEVANT, J.

Action to quiet title. From a judgment in favor of the plaintiff the defendant has appealed under section 953a of the Code of Civil Procedure.

The respondent has interposed a motion to affirm the judgment. That motion is based on the ground that the appellant has not complied with the statutory provisions in making a record. In the view we take of the case it will not be necessary to pass on the motion.

It will be remembered that prior to 1895 it had been the law of this state that property on which state and county taxes were delinquent might be sold by the tax collector at public auction to the highest bidder, and in default of any acceptable bids that then, and in that event, the property might be sold to the state of California. (F. P. Deering’s Pol. Code 1886, secs. 3746-3817.) In 1895 many changes were made in the law and the general effect of those changes was to provide that all sales would be made to the state. (Stats. 1895 c. 218.) In 1913 the legislature again took up the consideration of the subject and made such additions and amendments as to it seemed necessary, to the end that thereafter under certain circumstances such properties might be sold by the tax collector at public auction to the highest bidder and leaving the statute to stand which under other circumstances would authorize a sale to the state. The respondent claims to have purchased the property in question pursuant to the amendments of 1913.

When the plaintiff brought forward the deed made by the tax collector and offered the same in evidence the appellant objected on the ground that the deed was “incompetent, irrelevant and immaterial, and no proper foundation laid.” The objection was overruled and the appellant presents the point at this time. The deed recites that it is made “between W. 0. Welch, tax collector of the county of Los Angeles, State of California, first party, and Chester A. Bell, second party”; that the property was sold to Fred Stein and it also recites that the tax collector “does hereby grant to the said second party the assignee of said purchaser,” etc. The appellant complains that the respondent had not previously introduced any evidence to the effect that Bell had become the assignee of Stein. The respondent contends that he was not bound to do so and he cites sections 3785b, 3786 and 3787 of the Political Code, as sustaining his position. Section 3785b authorizes the tax collector to execute such a deed “to such purchaser or his assigns.” By direct reference sections 3786 and 3787 are made applicable to such a deed. Section 3786 provides that “such deed, duly acknowledged or proved, is primary evidence ...” of eight different elements, enumerating them. Section 3787 provides: “such deed, duly acknowledged or proved, is (except as against actual fraud) con-elusive evidence of the regularity of all other proceedings from the assessment by the assessor, inclusive, up to the execution of the deed.” As the statute authorizes the tax collector to write the. deed and to execute it to the purchaser or his assigns, it necessarily became one of his proceedings to ascertain and determine, if requested, whether Stein had conveyed to Bell, and if so to execute the deed to Bell. It therefore seems clear that the deed, by reason of the provisions of section 3787, became conclusive evidence of the regularity of the tax collectors’ proceeding in ascertaining whether there had been an assignment.

The appellant next contends that the tax collector executed the deed one day after his authority had expired. In this connection the appellant calls attention to the fact that the notice of sale was published first on June 8, 1921. He then calls attention to the provisions of section 3767 of the Political Code and asserts that the property should have been sold on a date not less than twenty-one nor more than twenty-eight days from June 8, 1921, whereas it was sold on the seventh day of July, 1921, that is the twenty-ninth day after the date of the first publication. If our statute had no other provisions on the subject except what is contained in section 3767, appellant’s position might be sustained, but the statute contains other provisions. In making the changes that were made in 1913 the legislature provided the contents of the notice of sale. (Pol. Code/ sec. 3764.) The statutory form so provided recites, “In pursuance of law, public notice is hereby given that, commencing on the-day of-, 19—, at the hour of-o’clock — M. of that day, and continuing from day to day thereafter, if additional time is required to complete the sale, in the office of the tax collector. ...” Beading all the provisions of the statute together it does not seem to be doubtful that the sale should commence within the time mentioned, not less than twenty-one days and not more than twenty-eight days after the date of the first publication of the notice, but that is within the contemplation of the statute that the sale may be continued from day to day if additional time is required.

The appellant claims that there was no evidence of a deed to the state or any evidence that the state was entitled to a deed, and he makes the claim that under the provisions of onr statute the sale to Stein would be valid only in the event that a sale to the state would be valid if Stein or some other individual had not purchased at public auction. The appellant has not specifically called to our attention what was lacking. The respondent introduced in evidence (1) certificate of redemption showing a redemption by respondent of the property involved, paying all back taxes, and penalties down to July 20, 1921; (2) deed from tax collector to respondent dated July 21, 1921; and (3) tax receipt issued to respondent covering taxes for first installment for the year 1922.

In disposing of the last point we stated that the appellant did not point out any omission specifically. We made the statement by reason of the next point which the appellant presents and that is that the respondent at the trial introduced no evidence showing or tending to show that there was mailed, addressed to Carrie Gollinger, the taxpayer, the notice provided for in section 3771a of the Political Code; unless the respondent’s deed be considered evidence on the subject. The form of the deed is prescribed by section 3785b of the Political Code and there is no contention but what respondent’s deed conformed in every respect thereto. That section expressly provides that the provisions of sections 3786 and 3787. of the same code are applicable to the deeds provided for in section 3785b. The fifth subdivision of section 3786 provides that such deed duly acknowledged is primary evidence that at a proper time and place the property was sold as prescribed by law and by the proper officer. It has been held that the proper time for a sale is the time stated in the notice of the delinquent sale. (Tully v. Bauer, 52 Cal. 487, 489.) But the notice of the delinquent sale, its form and the time and manner of its publication, are provided in sections 3764-3767 of the Political Code, and by section 3771a of the same code the tax collector is required to mail to the taxpayer at his last-known address, at least twenty-one days before the date of sale, a copy of the delinquent list or a notice in form as provided for in said section. When, as to notice, it was held that a tax deed was prima facie evidence of the due publication of a delinquent notice it seems clear that it would equally be prima facie evidence that a copy of the notice as published was mailed. As the appellant introduced no evidence to the effect that the notice was not mailed, the trial court acted quite properly in holding that there was some evidence that the provisions of the statute concerning the mailing of the notice had been complied with.

In the fourth division of his brief the appellant complains that the name of the taxpayer as it appeared on the assessment-roll was “Gollinger,” and as it appears in the plaintiff’s deed it is spelled “Gallinger”; and certain columns in the assessment-roll are headed with the mark and that such an abbreviation is not one authorized by law.

What purports to be a photographic copy of the assessment-roll is contained in the transcript. The writing is very small, sometimes scratched and sometimes blurred by the photographic process, but as we read the writing we are unable to say that the taxpayer’s name was spelled on the assessment-roll with an “o” instead of an “a.” The findings are in favor of the respondent. On the record before us we cannot say there is no evidence to support the implied finding that the name was correctly spelled.

As to the abbreviation for the word “dollars,” we think the appellant has misconstrued section 3884 of the Political Code. That section should be construed as though the words which we have inserted in brackets were expressly contained in the section. The section has the same meaning as though it were written as follows: “In the assessment of land, advertisement and sale thereof for taxes, initial letters, abbreviations (may be used) and the figures may be used to designate the township, range, section or part thereof, and such other abbreviations (may be used) as may be approved by the State Board of Equalization; provided, a written or printed explanation of such abbreviations (as have been approved by that board) shall appear on each page of the assessment-roll or book.”

The appellant complains because the trial court denied his motion for a nonsuit. The proceeding was as follows: “Mr. Wilson: The plaintiff rests. Mr. Lewis: Now, the defendant moves for a nonsuit upon the ground of the entire failure of the plaintiff to maintain the issues upon his part and in his failure to show that he has any right, or interest whatever in the property involved in this action by the evidence already in. The Court: The motion will be denied. ’ ’ At the time the above proceedings were had the plaintiff had introduced the evidence hereinabove enumerated. When he made the motion for a nonsuit he did not call to the attention of the court, and has not called to our attention, any specific elements of evidence which the plaintiff had omitted to introduce otherwise than those matters that have been considered by us in other portions of this decision.

The case was tried before Judge Vieini, judge of the superior court of Amador County, acting as a judge of the superior court of Los Angeles County. After judgment had been ordered for the plaintiff the defendant served and filed a notice of intention to move for a new trial. He also served and filed the affidavit of Mr. Lewis in support of his intended motion. Later the defendant served notice that he would make his motion on the twentieth day of November, 1923. On the date last mentioned both counsel entered into a stipulation that the motion for a new trial might be submitted without argument upon the affidavit above mentioned. The record does not disclose the fact, but appellant’s brief states that the motion was not passed upon and that it was denied by operation of law. Predicating his contention on that condition of the record, the appellant claims that it was prejudicial error that his motion was not actually heard and actually determined by the trial judge. .It is clear that it was the appellant’s motion and if he had desired an actual ruling on the motion he should have made it at such a time and should have taken such steps as would have caused the matter to be properly presented to a judge of the superior court of the state of California, in and for Los Angeles County, and thereafter to have requested a ruling on the motion within the period provided by law. It was not the duty of the respondent to take any step looking toward the presentation or the determination of the appellant’s motion.

We find no error in the record. The judgment is affirmed.

Langdon, P. J., and Nourse, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 1, 1925, and the following opinion then rendered thereon;