Reed v. Lyon

Temple, C. — This is plaintiff’s appeal from the judgment.

Plaintiff sued to quiet his title to a tract of land which he claims under a tax sale. At the trial, he offered in evidence,—1. The certificate of sale for taxes, duly assigned to him; 2. Notice to redeem, preliminary to demand for a deed, pursuant to section 3785 of the Political Code; 3. Tax deed to his assignor.

To this evidence many objections were interposed, but none are insisted upon here, except that the notice to redeem did not state the amount due, but stated an amount to be due in excess of the true amount.

The tax and costs for which the property was sold amounted to $18.66. Adding 50 per cent authorized by statute, we have $27.99. The statement in the notice was: “ The amount due at the date of this notice is twenty-eight and ninety-nine hundredths dollars.”

Section 3785 of the Political Code provides that the purchaser shall be entitled to receive the sum of three dollars for the service of said notice, and the making of an affidavit of service, “ which sum of three dollars shall be paid by the redemptioner at the same time and in the same manner as other costs, percentage, penalties, and fees are paid.”

Appellant contends, that inasmuch as the notice correctly stated the amount for which the property was sold, knowing which, it is easy to find the sum required to redeem by simply adding fifty per cent, the notice did substantially state the last-mentioned sum, and the defendant could not be misled; and further, that as he was entitled to charge three dollars additional costs for serving the notice and making proof, the amount stated was less than the amount due; that he had a right to remit part of what was due him, and the defendant can[503]not complain if he was willing to accept less than the sum actually due.

Parties attempting to redeem have often failed to accomplish their object by offering or paying a sum somewhat less than the amount really due. No doubt one reason for requiring the notice was, that the redemptioner might know what amount the purchaser claimed to be due. Paying this, I have no doubt a redemption would be effected, even though it should prove less than the amount really due. In this case, I fail to see, however, that the amount stated in the notice was less than the amount really due. The notice must state “ the amount then due.” The three dollars was not due when the notice was signed, or even when served, and not until proof of such service was made and left with the tax collector. Therefore, it was not true that the amount then due was $28.99, or so much as that.