Lewis v. Rothchild

Sharpstein, J. Appeal from a judgment in an action brought to recover from the defendant the sum of $350, alleged to have been deposited by plaintiff with defendant, on the purchase by plaintiff of defendant of certain real estate described in the complaint. The written contract of purchase is copied into the complaint, and it stipulates that said deposit shall be returned to plaintiff if any valid liens for taxes be found to exist upon said premises, unless removed within five days after plaintiff shall give defendant notice, in writing, of the existence thereof.

Plaintiff alleges that during the fiscal years 1878-79, [628]and for many years prior thereto, one H. Cummings was the owner of said premises, and was assessed for said fiscal years, for his personal property situated in the city and county of San Francisco, $7.30 for state, city, and county purposes, which plaintiff alleges have not been paid, and constitute a valid lien upon said premises; and plaintiff further alleges that one Elizabeth Mitchell was the owner of said premises during the fiscal years 1884-85, and for many years prior thereto, and that she was assessed for said fiscal years, for her personal property situated in said city and county, $2.72 for state, city, and county purposes, which has never been paid, and constitutes a valid lien upon said premises; and plaintiff further alleges that ten days before the commencement of this action he notified defendant, in writing, of the existence of said liens, and requested him to remove the same, which he refused and neglected, and still refuses and neglects, to do, and that said taxes remain wholly unpaid and unsatisfied, and the premises unsold for the payment thereof; and on the second day of November, 1889, plaintiff demanded the return of said $350 deposited by him with defendant, but defendant refused and neglected, and still refuses and neglects, to return the same, and that the same or any part thereof has never been returned, wherefore he brings this action to recover the same.

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, because it appears that the alleged liens are barred by the provisions of subdivision 1 of section 338 of the Code of Civil Procedure, and by subdivision 1 of section 339 of said code, and by the provisions of section 343 of said code. The demurrer was sustained, plaintiff declined to amend his complaint, and judgment was entered in favor of defendant, and plaintiff appeals therefrom. The provisions of the Code of Civil Procedure relied on to justify the ruling of the court in sustaining the demurrer are the following: “ An action upon a liability created by statute, other than a penalty or forfeiture.” (Code