Chapman v. Zobelein

SHAW, J.

Action to quiet title. The complaint is in the usual form, alleging ownership in plaintiff. Defendant’s title is based upon a tax sale to the state, followed by a deed to the state and a conveyance to him from the state.

All the points raised appear to have been determined adversely to appellant on a former appeal as herein entitled, reported in 152 Cal. 216, [92 Pac. 188].

[133]

As we understand appellant, he admits that all the proceedings whereby title to the property was vested in defendant were duly had and taken pursuant to the laws of California. His contention is that, conceding the lot was sold to the state for the delinquent tax of 1898 and no redemption thereof made within the time fixed therefor by law, by reason whereof the legal title to the lot was conveyed to the state, nevertheless the state had no power to sell and convey title to the entire lot for an amount in excess of that upon payment of which the owner of the lot was entitled to redeem the same before such sale made by the state. At the date of the sale to defendant the amount of the taxes, interest and penalties against the lot was $16.19. The state, however, in the manner provided by law, sold the entire lot for $166, and the sum of $149.81 in excess of the $16.19 accrued for taxes, interest and costs, and upon payment of which at any time before the sale plaintiff might have redeemed the lot (Pol. Code, sec. 3785a), was paid into the public treasury and the owner of the lot received no compensation for that part of his lot which it is claimed was unnecessary to be sold in order to collect the amount due on the property. Plaintiff alleged, and at the trial offered evidence tending to prove, that on the date of the sale made by the state to defendant the lot was reasonably worth $500, and that the witness would willingly have paid the $16.19, covering interest, penalties and taxes thereon, for a part thereof consisting of the easterly or northerly ten feet thereof, thus leaving the remainder of the lot to the owner. This evidence was excluded and the ruling is assigned as error. The points now presented are: (1) That the proceeding under which the owner of the lot was divested of title thereto and which resulted in a sale of the whole property for $166, when the proceeds from a sale of a less quantity would have sufficed to pay the amount of $16.19 due to the state, is unconstitutional by reason of being obnoxious to section 1 of article XIII of the constitution of the state of California, which provides that “all property in the state . . . shall be taxed in proportion to its value, to be ascertained as provided by law.” (2) That the proceeding constituted a taking of plaintiff’s property without due process of law, in violation of the fourteenth amendment to the constitution of the United States which provides that “no state shall make or enforce