Palmer v. Boling

On the re-hearing at this term, Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring.

This was a proceeding to enjoin the sale of ten leagues of land, in Mariposa county, known as the Fremont grant.

This grant was, in the year 1855, listed for taxes by the assessor of said county, and its value assessed at five hundred thousand dollars.

By law, assessments were required to be made, and it is admitted this assessment was made between the first Monday of March and the first Monday of August, 1855. It is also admitted that the final judgment, confirming Fremont's grant, was rendered on the twenty-seventh day of June, 1855; .that, pursuant to said judgment, a segregation of the land from the public domain was accomplished, by a survey, on the thirty-first of July, 1855, and that, in default of the payment of taxes assessed as above, the defendant, who was sheriff and ex officio tax-collector *389for said county, threatens to sell the land contained in the boundaries established by the survey.

The appellant insists: First, that prior to the thirty-first of July, 1855, plaintiff had only an equitable right to have the ten leagues of land, within certain limits, located and set apart to him by the United States, and that, until the segregation was actually made, he was not the owner of any specific body of land, subject to be assessed for taxes.

Second, that an assessment is an estimate of value, made by an officer sworn to exercise his judgment fairly, and to do this, it is necessary that he should know quantity and quality of the land, which, in this case, could not have been known to the offi-, cer before the survey, as the ten leagues were included in a much larger tract, on"e portion of which was worthless, and the other immensely valuable.

The first point contended for is in direct conflict with the decision of the Supreme Court of the United States, in the case of Fremont v. United States. It was then held that the grant, under which plaintiff claims, conveyed not merely an inchoate, or equitable, but a legal title, which vested in the grantee a present immediate estate in fee. 17 Howard, 542.,

By our Revenue Law, all property within the State, of whatever description, owned by an individual or private corporation, is subject to taxation; and if plaintiff was the owner of land within the State, he cannot escape duties which such ownership imposes. But, if we admit the correctness of both points contended for, it does not necessarily follow that the assessment is illegal. The precise time at which it was made is not shown; it is, however, admitted to have'been between the first Mondays of March and August. It is not denied that, immediately upon the segregation of the land from the public domain, the legal title vested in plaintiff, and the land was subject to taxation. This occurred on the thirty-first day of July, which was Tuesday. Excluding the day on which the survey was made, and the fifth day of August, (which was Sunday,) four days intertervened between the survey and the first Monday of August, on any one of which an assessment could have been legally made, and, in the absence of any evidence to the contrary, we must presume that the officer properly performed his duty, and that the assessment was subsequent to the survey.

For these reasons, in addition to those contained in the opinion of the late Chief Justice, the judgment is affirmed, with costs.