Brunn v. Murphy

By the Court, Sawyer, J. This is an action to recover a tract of land in San Francisco. The plaintiff offered in evidence a tax deed executed upon a sale made for taxes for the fiscal year ending June 30th, 1861. Objection was made to its introduction on the ground that it was defective in numerous specified particulars required by the statute to be stated in a tax deed, and on other grounds. The objection was sustained, and the deed excluded. The plaintiff having no other title, judgment was rendered against him. A motion for new trial having been made, and denied, plaintiff appeals from the order denying the motion, and from the judgment.

The only objections to the introduction of the tax deed worthy of consideration are those relating to its sufficiency under the statute. Since the trial of this case in the District Court, the case of O'Grady v. Barnhisel, 23 Cal. 287, has been finally decided on petition for rehearing, in which a deed differing somewhat in form and minor details, yet in all essential particulars similar to the one in question, was held to be sufficient. That case was twice thoroughly argued before our predecessors, and the judgment had the concurrence of four Justices, there having been a change in one of the members of the Court between the first and second decisions. We do not feel called upon to reinvestigate the questions determined in that case.

[328] Assessment of property.

The motion for new trial, made since the decision in O'Grady v. Barnhisel, was denied on the authority of Moss v. Shear, 25 Cal. 38, upon the supposition that the tax for which the sale in question took place, was levied under section sixty-four of the Revenue Act of 1854, construed in that case. The learned Judge evidently overlooked one or two of the numerous amendments and changes in the revenue laws made since 1854. Section fifty-five of the Act of 1857 repeals in express terms “ sections fifty-nine to sixty-six, inclusive * * * of an Act passed on the 15th of May, 1854, entitled ‘ An Act to provide revenues,’ ” etc. (Laws 1857, p. 344, Sec. 55.) The tax in question was, therefore, not levied under sections sixty-four and sixty-five of the Act of 1854, but under the Act of 1857, as further amended by the Act of 1859. Section three of the Act of 1857, as amended by section two of the Act of 1859, contains a provision designed to obviate the questions involved in Moss v. Shear, which provision is as follows: “Provided, all real estate and personal property shall be assessed to a person, firm, corporation, association or company, as herein provided, if any owner or claimant shall be known to the Assessor, and to all owners and claimants of any interest, present or future therein, or any lien upon the same, and no error in regal’d to such owner or claimant shall in anywise affect the validity of such assessment.’’ (Laws 1859, p. 346, Sec. 2.)