Burr v. Hunt

California Supreme Court Jul 1, 1861Published

Before: Baldwin

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Holding. The court held that an injunction against a tax collector is improper because the plaintiff failed to demonstrate that a tax deed would create a cloud upon the title, as the proceedings under a repealed act would be null and apparent on the face of the deed.

Issues

Whether a tax deed executed under a repealed act creates a cloud upon title justifying an injunction.
Whether the court can enjoin a tax collector based on the conjecture that he will fail to conform his deed to the facts.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“If the sale were made in 1860, for taxes assessed by the Act of 1854, and due in 1857; and the proceedings so taken were not authorized by the Act of 1854, but that act was repealed, the act of the Collector would be simply null.”

“We cannot interpose by way of injunction upon a mere conjecture that he will make his papers so as not to conform to the facts.”

Synopsis

Where an assessment and sale for taxes would be void, and the matters making them void do not appear on the face of the Tax Collector’s deed, but be shown by extrinsic proof, and the deed upon its face would be prima facie valid, injunction lies to restrain the sale.

Assuming that the Revenue Act of May 15th, 1854, was repealed by the Revenue Act of April 29th, 1857, then injunction does not lie to restrain a sale in 1860, for taxes'assessed under the Act of 1854, for the year 1857, because the title of the property to be sold would not be clouded by proceedings under a repealed law of which every citizen is presumed to have knowledge.

The Tax Collector’s deed, under the Act of 1854, would show the fact that taxes were assessed, and the time and amount of the assessment. And if it appeared that property was sold in 1860, for taxes assessed under the Act of 1854, and due in 1857, the nullity of the sale would be shown on the face of the deed.

A Tax Collector’s deed, to be evidence of title, must be made in pursuance of a law giving it that effect; and where lands were sold for taxes assessed under the Act of 1854, and the deed was not made until after the passage of the Act of 1857, repealing the Act of 1854—assuming that it does so repeal—the deed is not evidence of title.

The Revenue Act of 1857 does not authorize sales for taxes assessed prior to its passage, but only for the fiscal year or years following its passage.

As to the operation of the Act of 1859, 123, in validating the assessment roll of 1857, in this case, see opinion.

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

Plaintiff brought his bill against defendant, Tax Collector, to enjoin the collection of taxes in the city of San Francisco, claimed to be due from the plaintiff for the year 1857. The bill avers that the assessment under which plaintiff’s property was advertised was made under, and by virtue of, an act of the Legislature, passed May 15,1854, which act provided the manner of the assessment, and rules for the collection, and remedies for the enforcement thereof against all delinquents, and that this act was repealed by the act of April 29th, 1857.

The only question made and argued is, whether the deed, if executed by the Tax Collector, would create a cloud upon the title.

If the assessment and the sale would be void, and if the matters which make them so do not appear on the face of the deed, but must be shown by extrinsic proof, and if the deed upon its face be prima facie valid, according to the cases in this and other Courts, the equitable remedy here sought would be proper.

If this law of 1854 be repealed in all its parts, as stated in the bill, and the Tax Collector is proceeding under that repealed act, it is difficult to see how any man’s title could be clouded by force of any proceedings under it. The presumption of knowledge of a law passed,-or a law repealing a former act, attaches to every citizen. It is said, in answer, that it will not appear on the face of the deed of the Tax Collector by what act the assessment was made. We must suppose the Tax Collector will make the deed in the usual and regular form, and that the deed will recite the facts. Among these would be the fact that taxes were assessed, and the [308]time and amount of this assessment. It would seem almost impossible to make out a certificate or deed under the Act of 1854 which would not show that the sale was not justified. The Tax Collector in making his certificate should state the facts as they really existed, and we cannot interpose by way of injunction upon a mere conjecture that he will make his papers so as not to conform to the facts. If the sale were made in 1860, for taxes assessed by the Act of 1854, and due in 1857; and the proceedings so taken were not authorized by the Act of 1854, but that act was repealed, the act of the Collector would be simply null. The deed showing the assessment would show that it was made prior to April, 1857, and the last act repeals the previous act of 1854 giving any effect whatever to such assessment. The tax deed, to be evidence, must be made in pursuance of a law giving it that effect; but no law gives that effect to a tax deed for lands sold under the Act of 1854, the deed being made after that act was repealed. The Act of 1857 does not authorize sales for taxes assessed prior to its passage, but only for the fiscal year or years following the passage of it. And these taxes would show upon the face of the assessment and deed that they were not assessed for that year, but for the previous year, that is, for the fiscal year ending June 30th, 1857.

Burr v. Hunt

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