San Francisco & Fresno Land Co. v. Banbury

HARRISON, J. In June, 1892, the plaintiff, as the owner and successor in interest of sixty-seven lots of land in McPherson’s addition to the town of McPherson, formerly in the county of Los Angeles, but now in the county of Orange, sought to "redeem them from a sale for delinquent taxes, made to the state of California March 12, 1889, and for that purpose tendered to the defendant Banbury, as treasurer of the county of Los Angeles, the sum of $225.00. It is conceded that this amount of money was sufficient to effect the redemption, unless the sum of three dollars for each lot, amounting to $201, for giving the notice of an intention to apply for a deed and the affidavit therefor, fixed as a fee for giving such notice by section 3785 of the Political Code, should also have been tendered. The county auditor, in his estimate of the amount to be paid for redemption, included this item in the certificates issued by him under the provision of section 3817 of the Political Code, and the treasurer refused to accept the amount tendered, or to give to the plaintiff the certificates named in said section. The plaintiff thereupon brought this action to compel the treasurer to accept the sum tendered as above, and to give to it the triplicate receipts prescribed by the aforesaid section 3817. The cause was tried ■in the court below and judgment rendered for the defendant, from which, and from an order denying a motion for a new trial, the plaintiff has appealed.

Several questions are discussed in the briefs of counsel, but the conclusion which we have reached upon one of these questions renders it unnecessary to determine the others. In May, 1892, the defendant House, acting under the direction of the state controller, gave the notices referred to in section 3785 of the Political Code, and filed his affidavit thereof with the tax collector of Los Angeles county. These several notices were signed, “State of California, by R. F. House, Agent,” and in the affidavit of service filed with the tax collector [791]House stated that he was the " agent for the purchaser of the property described in the foregoing notice.” House also testified at the trial that prior to the date of giving the notice “he had been appointed by the state of California, through the state controller and attorney general, and was authorized to serve notices to cause the redemption of property sold to the state for taxes.” The question here presented is not the right of the state to the issuance of a deed, but the right of the delinquent taxpayer to redeem the land struck off to the state under the provisions of section 3773 of the Political Code, and this right depends upon his compliance with the requirements of the statute in that behalf, the particular questions here presented being whether there was a tender of a sufficient amount of money to effect the redemption. It is insisted by the defendants that the plaintiff, in addition to the amount tendered by it, should have also tendered three dollars for each of the notices given by House, amounting to $201 in all; while the plaintiff insists that the notice given by House was without authority of law, and consequently that the item of three dollars for giving such notice was not a part of the “costs and expenses of the redemption.” Section 3817 of the Political Code provides that, when the state has become the purchaser of land sold for delinquent taxes, the person whose estate has been sold, or his successor in interest, may redeem the same by paying the amount of taxes due thereon at the time of the sale, with interest thereon, and any other taxes then delinquent thereon, together with a sum of money equivalent to the taxes that would have been subsequently assessed; “and also all costs and expenses, and twenty-five per cent penalty which may have accrued by reason of such delinquency and sale, and the costs and expenses of such redemption.” Unless the item of three dollars for giving the notice is a part of the “costs and expenses” which have accrued “by reason of the delinquency and sale,” the plaintiff was under no obligation to tender it to the treasurer in order to effect a redemption from the sale. Section 3785 makes provision for the issuance of a deed to the purchaser in case there is no redemption from the tax sale, and requires that before making application for a deed the “purchaser” must serve upon the owner of the property purchased a written notice, containing certain