People v. Donnelly

McKinstry, J.: Action to recover a tax levied in 1873. The answer, as an affirmative defense, contained the following:

[145]“ That on or about the month of January, 1871, the State of California, plaintiff herein, was the owner and in possession of the lots of land described in the complaint, the same being salt marsh and tide lands.

“ That on or about the said month of January, 1871, the Board of Tide Land Commissioners, duly appointed and commissioned under and by virtue of an Act of the Legislature of the State of California, entitled 1 An Act to Survey and Dispose of Certain' Salt Marsh and Tide Lands belonging to the State of California’—approved March 30,1868, and an Act supplementary to and amendatory of an Act entitled ‘ An Act to Survey and Dispose of Certain Salt Marsh and Tide Lands belonging to the State of California ’—approved March 30, 1868, and approved April 1, 1870, offered for sale, at public auction, to the highest bidder, the land described in the complaint, upon substantially the following terms and agreement, to wit:

“ The parties purchasing the said lots were to pay for the same in four equal annual installments, and upon payment of the last installment, the State of California, through the said Board of Tide Land Commissioners, would make a deed of conveyance to the parties purchasing the said lands; and it was further understood and agreed, that the title to the said land was to remain in the State of California until the last installment would be paid as aforesaid, and the sale approved by the said Commissioners; and it was further understood and agreed, that no title or interest in the said land was to pass to the purchaser at the sale until the last installment should be paid up as aforesaid; and it was further understood and agreed, that the said lands should not be assessed for any „ tax or assessment until after the payment by the purchaser at the sale of all the said installments; and it was further understood and agreed, that if the purchaser at the sale failed to pay any of the installments at the time specified for payment, all the payments made were to be forfeited to the State.

“ That on or about the 5th day of said month (January, 1871), at the said sale, the defendants became the purchasers of the lots described in the complaint, for the sum of sixteen [146]