People ex rel. Presburg v. McEwen

Norton, J. delivered the opinion of the Court-Crocker, J. and Cope, C. J. concurring.

This is an appeal from an order directing a mandamus to issue to the defendant, commanding him to execute a deed to the relator under the following circumstances: An undivided half of a tract of land in Contra Costa County, comprising something more than 6,000 acres, was assessed for the taxes of the year 1860 to threb persons. By an Act of the Legislature of 1861 the assessment of taxes for the years 1860 and 1861 for that county were legalized and confirmed, and the District Attorney directed to bring actions to recover the unpaid taxes. (Law of 1861,119.) Under this law an action was brought against the three persons to whom the said premises were assessed, and a judgment recovered, and the premises sold to the relator by the defendant as Tax Collector. Within six months after the sale one of the defendants, Reyes Vasques, paid to the Tax Collector one-eighth part of the taxes, with costs and per centage allowed by law, for the purpose of redeeming one undivided eighth part of said premises, of which undivided eighth part she claimed to be the owner. At the time of the said sale she was a minor and a married woman. After the expiration of six months from the day of sale the relator demanded a deed of the whole premises, which the Tax Collector declined to give, but offered a deed of seven-eighths. Thereupon the present application was made to the District Court for a mandamus, which was granted, requiring the Collector to execute a deed for the whole premises sold. From this order Reyes Vasques appeals.

The argument on the part of the appellant is, that the law under [57]which the assessment was made does not authorize or contemplate an assessment jointly to tenants in common, but, on the contrary, each owner is to be assessed for his share, and may, consequently, redeem his share, and that a part owner is expressly authorized to pay his proportion of a tax, and that the obtaining a judgment and effecting a sale under the special Act of 1861 does not change this right to pay a portion of the tax and redeem an undivided share.

The Revenue Act of 1860,.under which the assessment in question was made, does not directly authorize a joint assessment, unless the property is owned by a firm or association, but under the designation “ person ” it would doubtless be competent to assess land to several persons, and it seems to be contemplated that such assessments would be made, since it is provided that the owner of an undivided portion may pay his portion of the tax.