Evans v. County of San Joaquin

ADAMS, P. J.

On November 29, 1929, the Pacific States Savings and Loan Company (hereinafter referred to as Pacific States) became the holder of a deed of trust executed by the legal owner of a certain parcel of property in San Joaquin County. Thereafter, on or about August 5, 1935, this property was conveyed by its owner to Charles C. and Nettie Roe, subject to the lien of the deed of trust. The Roes failed to pay the general property taxes assessed against and levied upon it for the fiscal year 1935-36, and on or about the 24th day of June, 1936, it was sold to the State of California, pursuant to the provisions of the Political Code. At the time Charles C. and Nettie Roe took title to the parcel involved in this action, they were the owners of an adjoining parcel, and the two parcels were assessed as one by the county of San Joaquin for the purpose of levying general property taxes thereon for the fiscal years 1937-38 and 1938-39. Located upon this adjoining parcel was certain personal property owned by Charles C. Roe, which personal property was also assessed by the county of San Joaquin for the years 1937-38 and 1938-39, and a lien for the payment of taxes thereon was impressed by the county upon both parcels of real property. The Roes meanwhile had defaulted in their payments under the deed of trust and the trustees named therein, on December 28, 1938, executed a trustees’ deed of said property to Pacific States. Thereafter the Building and Loan Commissioner took possession of the assets of Pacific States and on March 28, 1940, applied to the auditor of the county of San Joaquin for an estimate of the amount necessary to be

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paid in order to redeem the said real property from the sale thereof to the State of California, in accordance with the provisions of section 3817 of the Political Code. Defendants contended that in order to redeem, it was necessary for plaintiff to pay the sum of $721.77, which sum included $545.77 which was the amount of the tax on Roe’s personal property, with interest and penalties, for years subsequent to the sale to the state. Plaintiff contended that the only amount which it should be compelled to pay was the tax upon the real property in controversy. The auditor refused to furnish an estimate excluding the personal property taxes, and refused to allow a redemption of the real property without payment by plaintiff of the whole sum of $721.77. Plaintiff then paid the said sum under written protest and thereafter presented to the board of supervisors of the county a claim for refund of $545.77. This claim was denied, whereupon plaintiff brought this action. A demurrer to his complaint was sustained without leave to amend, and from the judgment for defendants which followed plaintiff appealed. This court reversed said judgment