The opinion of tbe court was delivered by
Scott, C. J.This action was brought to obtain a reduction in tbe assessment of taxes on certain real estate for tbe years 1895-96, on tbe ground tbat it bad been fraudulently assessed at much more than its true value. A tender was made of wbat-tbe plaintiff averred to be tbe amount of taxes justly due. A trial was bad and a reduction made, but not as low as tbe plaintiff claimed. Tbe defendant bas appealed. It was alleged, and tbe court found, tbat at tbe time of making tbe assessment tbe assessor or bis deputy informed tbe plaintiff tbat sucb assessment would be tbe same as for tbe year 1894, or tbat it would not exceed tbat amount, but thereafter in fact assessed tbe property for a largely increased amount, and tbat tbe plaintiff, relying upon said representations and having no notice of tbe valuations placed on tbe property by tbe assessor, did *571not go before tbe board of equalization and ask for a reduction, and did not know of sucb exorbitant valuations until a long time after tbe board bad adjourned. There is no contention that tbe plaintiff did not act diligently when it obtained tbe knowledge.
Tbe court found tbe value of tbe property to be tbe same as that placed upon it in 1894, and also found that tbe board of equalization, on account of an oversight, did not consider or equalize tbe valuation of said lands with that placed upon other lands in tbe vicinity, but would have done so but for sucb unintentional omission, and that said property was assessed for much more than like property in tbe vicinity. Tbe finding of tbe court on tbe matter of tbe assessment was, in substance, that it was a fraudulent one, and we are of tbe opinion that tbe evidence was sufficient to sustain it.
We fully concur in tbe appellant’s argument to tbe effect that an assessment ought n'ot to be interfered with unless a substantial overvaluation is clearly established; but, without entering into tbe details of tbe several assessments discussed by appellant, we are of tbe opinion that tbe reduction granted by tbe court was a substantial one. Questions are raised relating to tbe admissibility of certain of tbe evidence, but it is unnecessary to set them forth in detail, for some are immaterial, and there is enough competent, unquestioned proof to sustain the findings.
It is contended that no sufficient tender was alleged, but tbe complaint contains a direct allegation of tbe tender of tbe taxes for tbe years 1895-96, of tbe amount that tbe plaintiff alleged to be justly due, and that tbe same was made good by bringing tbe amount into court; and this was not denied. Tbe real contention, however, is that tbe tender was insufficient, under §§ 676, 677," 2 Hill’s Code (Bal. Code, §§ 5678, 5679), because tbe court found that *572more was due than the sum tendered. If the plaintiff is hound, under this statute, at his peril, to tender a sum adequate to cover what the court may thereafter find to be a just tax, in order to maintain his action, he would be largely deprived of any benefit thereby; for, if his tender should be too small, his action would be dismissed, and, if too large, he would lose the excess. We think the statute is complied with by averring the amount justly due, and the tender of it, keeping it good and offering to pay such further sum as should be found due, if any, if such tender is made in good faith; and that the finding of a larger amount by the court, where the plaintiff had acted in good faith, could only affect the question of costs.
Affirmed.
Reavis, Anders, Gordon and Dunbar, JJ., concur.