Marysville Woolen Mills v. Smith

LORIGAN, J.

Two other eases on

appeal—California Midland Ry. Co.

v.

Smith,

and

Martin

v.

Smith, post,

p. 812, [175 Pac. 16]—involve the same controlling points as are embraced in this appeal, and by stipulation of all parties are submitted to abide the decision on the appeal under present" consideration.

This action was brought to remove a cloud upon the title of the plaintiff to certain property in Tuba County through the issuance of a certificate of sale to defendant Johnson at a> delinquent tax sale and to enjoin the issuance of a tax deed on the certificate.

[788]

The court entered a decree declaring the tax sale and tax certificate issued thereon invalid, enjoined the issuance of atar, deed, but required that plaintiff pay to defendant Johnson the sum of $641.91, the amount due for taxes and paid by him for the property at the tax sale. The defendant Johnson appeals from this decree and from an order denying his motion for a new trial.

The only attack made on this appeal is on the findings. The court found that plaintiff was the owner of the real and personal property involved in the tax sale which, it may be here remarked, was necessarily a determination that the tax sale to appellant was void. It further found, among other proceedings eventuating in the sale of the property for delinquent taxes, that the tax collector of the city of Marysville published in a specified newspaper a notice stating that taxes fixed and levied against the property of the plaintiff would be delinquent on October 3, 1914; that thereafter said taxes not having been paid, said tax collector published, for the proper time required by law, a delinquent tax notice which, provided for the sale of the property on the 3d of December, 1914; that at no time, however, did said tax collector make or file with the city clerk of the city of Marysville, or with any other person, or in any office, or at all, any copy of the publication aforesaid, or any affidavit attached thereto, or any proof of any such publication; that said sale was advertised and noticed for December 3, 1914, but on said last date wan postponed till the fourth day of December, 1914; that said tax collector neither gave, nor caused to be given, any notice of the said postponement of sale; that on December 4th a sale was had and the property herein was sold to defendant Johnson and a certificate of sale issued to him; that on December