Walsh v. Burke

[595]

CHIPMAN, C.

Action to quiet title to certain land. Defendant Burke disclaimed all interest in the property. Defendant Henry filed a separate answer, deraigning title through one Dependener, to whom the land was sold for non-payment of delinquent taxes assessed for the year 1892-93. Plaintiff had judgment, from which and from the order denying his motion for a new trial Henry appeals.

The court made the following findings: That the land in question was patented to the Central Pacific Railroad Company, and this company conveyed the land to Mary E. Walsh, who conveyed it to plaintiffs; the land was assessed for state and county taxes for the fiscal year 1892-93 to Mary Walsh, and became delinquent on June 26, 1893; the land was sold by the tax-collector, and was purchased by one Dependener on that day, and a certificate of tax sale was issued to him in the form required by law, “ except that the same recited that the said property was assessed to Mary Walsh”; in May, 1894, the property was unoccupied, and the said Mary Walsh could not be found, and on May 29, 1894, Dependener issued a notice directed to Mary Walsh; this notice was in due form, described the property, stated that it had been sold for delinquent taxes, and gave the date of sale and the amount of the taxes, and that the right to redeem would expire on June 29, 1894, and that a deed would be demanded as soon as the right of redemption expires; the notice was posted in a conspicuous place on the land, on May 29,1894; the Newcastle News was at all the times mentioned a weekly newspaper of general circulation, a: d published on Wednesday of each and every week; that said notice was published therein for the first time on June 6, 1894, and thereafter in the issues of said paper dated June 13, 20,. and 27, 1894, but was not published on May 30, and was not published on July 4, 1894; “that there was a regular issue of said paper on May 30 and July 4, 1894”; on May 3, 1894, a copy of said notice was filed in the recorder’s office; on July 11, 1894, the tax-collector executed to Dependener a tax deed for said property.

Respondents concede that appellant has in his brief successfully met all their objections to the tax sale made in the court below, except one point, on which they now rely,—namely, that there was no* publication of the notice to redeem, as required by law. Section 3785 of the Political Code, as amended in 1891 (Stats. 1891, p. 134), provides as follows: That the