Savings and Loan Soc. v. Burke

SLOSS, J.

This is an action brought to restrain the execution of a tax-deed to the state, following a sale for nonpayment of taxes. A demurrer to the second amended complaint was sustained, and, plaintiff declining to amend, judgment went for the defendant. The plaintiff appeals.

The complaint in question sets forth these facts: The plaintiff, in 1897, was, and ever since has been, the owner and holder of a mortgage interest in certain lands in Santa Barbara County. The mortgaged lands, consisting of some eighty-eight hundred acres, were included in territory which had prior to 1897 been divided into townships and sections pursuant to the laws of the United States. The owner of the fee was J. W. Calkins, and the land was assessed to him for the year 1897 by sections, as required by sections 3628 and 3650 of the Political Code. The mortgage interest of the plaintiff was, however, assessed in a lump sum, without apportionment or division among the subdivisions or sections composing the mortgaged property. The amount of the tax was likewise computed in the assessment-book in a lump sum, and appears therein as amounting to $1,316.86. No part of the tax having been paid, the property was sold to the state (Pol. Code, sec. 3771), and the plaintiff, claiming that the failure to assess his mortgage interest by sections is fatal to the validity of the assessment and tax, seeks to enjoin the execution of a deed. For the purposes of this decision, we assume, but do not decide, that the provisions of the Political Code as to assessing land by sections are applicable to mortgage interests.

It is the law of this state, as declared in two decisions rendered since this appeal was taken, that the execution of a tax-deed based on an imperfect assessment will not be

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restrained at the suit of one who does not offer to do equity by paying such tax as is in morals and justice chargeable against him.

(Couts

v.

Cornell,

147 Cal. 560, [109 Am. St. Rep. 168, 82 Pac. 194] ;

Grant

v.