Ducey v. Dambacher

PULLEN, P. J.

In this appeal an opinion was filed affirming the judgment, and upon our motion a rehearing was granted in order to give the question further consideration. Further study has again satisfied us that the judgment should be affirmed.

Plaintiff: herein is and was at the times herein mentioned the owner of a tract of land in Tuolumne County. The assessment rolls of that county show delinquent unpaid taxes against the land for the years 1893, 1896 and 1897, and noted on the assessment rolls against the property was, “Sold to the State”. No proceedings had been taken to sell the property at public auction and no deed had ever passed to the state. All other taxes had been paid against the property to 1931, and thereafter the taxes were delinquent for 1931, 1932, 1933, 1934 and 1935. Prior to December, 1936, plaintiff sought to redeem the property by paying the taxes, penalties and costs arising from the delinquencies for 1931 and succeeding years. Defendant, as auditor of the county

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of Tuolumne, refused to accept this tender unless the taxes for 1893, 1896 and 1897 with costs and penalties were also paid. A writ of mandate was sought from the superior court to compel the auditor to accept the tender and to issue a certificate of redemption clearing the property of all of the delinquencies. The writ was duly issued, from which this appeal is taken.

Section 3771 of the Political Code then provided that if upon a specified day and hour the taxes together with penalties and costs assessed against the particular property had not been fully paid, then by operation of law and the declaration of the tax collector the same should be sold to the state, and the tax collector make an entry opposite each of such parcels, “Sold to the State”.

At the time of the tender by respondent herein section 3716 of the Political Code read as follows:

“Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof; provided, that effective one year from the time this act takes effect, the lien of every tax whether now existing or hereafter attaching shall cease to exist for all purposes after thirty years from the time said tax became a lien; .