Carter v. Baker

MARKS, J.

This is an appeal from a judgment in favor of the respondent Tax Collector of Fresno County and his

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surety in an action for damages resulting from the giving of a defective tax deed to appellant. The complaint contains two causes of action. The first alleges that the Tax Collector failed and refused to execute and deliver to appellant any deed after he had become the purchaser at a tax sale. The second alleges that the Tax Collector gave appellant a void deed which conveyed no title to him and refused to give him a correction deed after the defects in the first deed were discovered.

Joseph L. Chevalier owned the property in question and failed to pay the second installment of taxes for the fiscal year 1921-1922. The Tax Collector sold the property to appellant in 1927 and gave him a deed to the property. Appellant then started suit to quiet title to the property, which resulted in a judgment in favor of Chevalier upon the payment of $42.70 into court for appellant, the amount of the taxes, penalties, costs and interest. This judgment was affirmed on appeal September 16, 1929.

(Carter

v.

Chevalier,

100 Cal. App. 567 [280 Pac. 706].) The court held the tax deed void. On November 22, 1929, appellant received the $42.70 from the county clerk, and on December 4, 1929, the further sum of $126.99 from the county of Bhesno, this being the balance of the sum he had paid at the tax sale. About March 4, 1929, appellant made demand on the Tax Collector for the execution of a correction tax deed, which demand was refused. This action was commenced on November 27, 1929.

From the view we take of the ease it is not necessary for us to discuss the possibility of liability on the part of a tax collector to respond in damages for the execution of a tax deed so defective in form that it is void.

It is elemental that to recover, the appellant must prove that he suffered damage as a result of the defective tax deed. Conversely, if the tax deed had been legal in form he still would suffer no damage unless it would vest in him some interest in the property it purported to convey. On this question the evidence shows he proved the execution of the void deed and the market value of the property and nothing more.