Randall v. Austin

California Supreme Court Jul 1, 1873 No. No. 3,586Published

Before: Crockett

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Holding. The court held that a party who pays taxes and assessments under the Act of March 14th, 1870, while involved in a pending land possession suit, is entitled to a refund of those payments if they are the unsuccessful party in the litigation.

Issues

Whether a party who pays taxes and assessments during a pending land possession suit is entitled to a refund if they are unsuccessful in the litigation.
Whether the Tax Collector is liable to refund the money when the payment was not deposited into the city treasury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Practically it is a mere deposit of the taxes and assessment by each to await the result of the controversy in the Courts, and though it is not expressly provided that the unsuccessful party may withdraw his deposit, we have not the least doubt”

“The rule that voluntary payments cannot be recovered back has no application to the case”

“He will not be allowed to set up that which would be a breach of his official duty as a defense against an action by the rightful owner of the fund.”

Synopsis

Outside Lands in San Fbanoisco.—Order Humber Eight Hundred, of the Board of Supervisors of the City and County of San Francisco, prescribing the payment of taxes and assessments as a condition upon which persons in possession of outside lands in said city should be entitled to the benefit of the Act of Congress of March 8th, 1866, did not contemplate the payment of taxes and assessments twice on the same land.

Idem.—It was the intention of said order, that such taxes and assessments should be paid by the person, or his predecessor in interest, who was in possession March 8th,1866, or had been wrongfully deprived of the possession, and was entitled to recover it. The Act of March 14th, 1870, prescribing the method of proceeding for the possessors to obtain from said city a conveyance of said land entitled to record, which requires contesting claimants each of them to pay to the Tax Collector the taxes and assessments on the land, was intended to enforce amere deposit of the taxes and assessments, and the unsuccessful party to the litigation has a right to withdraw his deposit.

Idem.—So long as the Tax Collector retains such taxes and assessments, it is his duty to pay the same to the unsuccessful litigant; and he will not be allowed to set up as a defense that the City and County of San Francisco is the proper party to be sued.

Fund in Hands op Public Offices.—A public officer who holds in his hands a fund which rightfully belongs to a private person, but which the officer ought to have paid into the public treasury, will not be permitted, in an action brought against him by the rightful owner of the fund, to set up as a defense a breach of his official duty in not paying the fund into the treasury. •

By the Court, Crockett, J.: Order Number Eight Hundred of the Board of Supervisors of the City and County of San Francisco, which was afterwards ratified by the Act of the Legislature of March 27th, 1868 (Stats. 1867-8, p, 379), prescribed as one of the conditions on which any person should be entitled to the benefit of the Act of Congress of March 8th, 1866 (14 Stats, at Large, p. 4), the payment by the claimant of certain taxes and assessments on the lands claimed. But no provision was made for a conveyance to the claimant of the legal title in such form that it could be made a matter of record. The Act of March 14th, 1870 (Stats. 1869-70, p. 353), was intended to remedy this defect; and prescribed the method of [60]proceeding, by which the claimant may obtain a conveyance in due form, from the city and county.

By the terms of the Act, the claimant is required to present to the Board of Supervisors a petition stating, amongst other matters, that he has paid to the Tax Collector the taxes and assessments on the land already referred to, and if the Board, on hearing the petition and proofs, is satisfied that the claimant is entitled to the land, it shall enter an order awarding it to him. The Board is then to publish a notice of the award; after the due publication of which the Mayor is authorized to execute a conveyance to the claimant; “provided however, that in case a suit shall be pending between the petitioner and some third person, involving the right of possession of the tract, or some portion thereof petitioned for, and such third person shall file with the Clerk of the Board of Supervisors a copy of the complaint filed in said action before the deed shall have been executed and delivered to the petitioner, and also competent proof that such third person, or the person through whom they claim or derive possession, has paid the taxes and assessments mentioned in the first section of this Act; then, and in that case, the deed shall be withheld until such suit shall be finally determined, and there shall thereafter be executed a deed of conveyance of so much of the tract of land as shall be involved in the said suit to the party in whose favor the said suit shall be finally determined as aforesaid.”

It appears from the agreed statement of facts in this case, that on the 21st of April, 1870, Winters and others paid to the Tax Collector all the taxes and assessments on certain lands, in conformity with the foregoing requirements, and presented their petition in due form to the Board of Supervisors, asking that said lands be awarded to them; that the Board proceeded to act on the petition, and before a deed was executed and delivered to the petitioners the plaintiff in this action on the 6th day of May, 1870, paid to the Tax

Randall v. Austin

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