People ex rel. Seale v. Doane
Before: Baldwin, Field
Synopsis
On mandamus against the Sheriff by a purchaser at a Sheriff’s sale of property as belonging to the city of San Francisco on judgment and execution against the city for a deed, the value of the interest sold, or probably the leviable quality of the title, could not be enquired into—the city not being a party.
Where the Board of Supervisors of the city and county of San Francisco at a special meeting pass a resolution authorizing Burr, as President of the Board, to redeem certain city property sold at Sheriff’s sale, and the resolution does not authorize the expenditure of any money on the part of the city and county,- and was not published, with .ayes and noes, in a newspaper before final action, according to the sixty-sixth section of the Consolidation Act of 1856 : Held, that such resolution was sufficient authority to the President to make the redemption on the part of the city and county, even though the money for that purpose came from private hands.
Held, further, that whether the money tendered by Burr for redemption was his own or the money of the city and county, is matter between them alone.
Third persons have no right to inquire from what source a redemptioner gets the money he proposes to use to effect a redemption he is entitled to make.
Where a party purchased property at Sheriff’s sale, and on an attempt by the owner to redeem from him, he objects that the amount tendered for redemption is not enough, because not including certain taxes he has paid on the property: Held, that he must show that the taxes were legally assessed and paid, and were a charge on the property before or at the time of the redemption ; and the Tax Collector’s receipts are not sufficient proof.
Baldwin, J. delivered the opinion of the Court—Field, C. J. concurring.
This was a proceeding, by mandamus, to compel the defendant, as Sheriff, to execute a deed to the relator for certain real estate sold under execution as the property of the city of San Francisco. The Court below granted the order, and from it this appeal is taken.
It is suggested that some of this property is upland lots, such as those the title of which was passed upon in Hart v. Burnett. If this be so, the city has no particular interest in disputing this deed so far as these lots are concerned; for the deed is, as to such property, a mere nullity, passing no title to the purchaser. But probably this is no answer to the application, if the Sheriff sold the property ; since the value of the interest sold, or probably the leviable quality of the title, could not be inquired into in this proceeding, to which the city is not a party.
[485]The main question arises upon the effect of certain proceedings taken by Mr. Burr, ostensibly on behalf of the Board of Supervisors, of which he was President, to redeem this property from the Sheriff’s sale.
By resolution of the Board of Supervisors, Burr, as President, was authorized to redeem this property; and the proof is that the attempted redemption was in virtue of this order. He did make a tender of money with this avowed purpose. But to this tender some objections were made, which we propose briefly to consider. It is said that this resolution gave no authority, because made at a special meeting of this Board called for that particular purpose ; and that the resolution, after its introduction, was not published, with the ayes and noes, in some city daily newspaper, at least five days before final action by the Board upon the same, as required by the sixty-eighth section of the Consolidation Act (Stats, of 1856,164.) But the resolution makes and involves no expenditure of money over five hundred dollars on the part of the city. If it did, possibly the Act charging this sum upon the city and County Treasury, or upon the city and county, might be void; though it is not necessary so to decide. But not a word is said in this resolution in respect to a debt or having the effect to create a debt by the city and county, or to expend its money. On the contrary, the proof shows that the money tendered was furnished by other parties for this purpose. The Board did not undertake to contract a debt, or to expend the money of the city and county. By the seventy-fourth section of the Consolidation Act (Statutes of 1856,165) it is provided, “ that the Board of Supervisors shall have power to provide for the security, custody and administration of all public property in said city and county; ” and it would be strange indeed if any government were constituted for a municipality, which had not the power to protect from destruction the title to its own property, when such protection did not cost the Government anything. It would be helpless and impotent, if such a power were denied the authorities. Whenever this money was furnished—it is immaterial by whom, or what the motive or purpose of those providing it—the Board had a right to order an act like this in the same way as it had the power to make any general order; and if this order did
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