Page images
PDF
EPUB

5. The evidence does not support the claim of the defendants that the alterations made were not a part of the building in question. The description we have already given of the character of the alterations made sufficiently shows that they became a material part of the building. It is true, they were afterwards removed and the building restored to its original condition. But it was no part of the contract with the lessee or sub-lessee that they should be removed, and in any event, they were so attached to the building as to become not only fixtures but a part of the structure of the building itself.

No other points are of sufficient importance to require notice. The order denying a new trial is affirmed.

Angellotti, J., and Sloss, J., concurred.

[L. A. No. 2731. Department Two.-May 24, 1912.]

A. L. HEALTON, Appellant, v. ADA R. MORRISON et al., Respondents.

TAXATION-SALE BY STATE OF LAND ACQUIRED FOR DELINQUENT TAXES

NOTICE BY MAIL ESSENTIAL TO VALIDITY-RECITALS IN TAX-DEED.— Under section 3897 of the Political Code, in the case of a sale by the state of real property acquired by it for delinquent taxes, the giving of the notice by publication and the mailing of a copy of the notice to the party to whom the land was last assessed next before the sale, at his last-known post-office address, are both jurisdictional prerequisites to a valid sale by the state, and a failure to give the latter notice when the condition existed requiring it, rendered the sale and the deed thereunder void. The recital in the tax-deed from the state on the matter of notice is not conclusive evidence on the subject, but prima facie evidence only and open to attack.

ID.-TIME OF MAILING NOTICE-THREE WEEKS BEFORE DATE OF SALEAlthough there is nothing in that section relating to the giving of personal notice by mail which specifically requires it to be given for any particular length of time, the reasonable and proper construction of the section demands that the notice should be mailed as long before the sale as the notice by publication is required to be given; that is, at least three successive weeks before the sale. A sale based upon a personal notice by mail of less duration, and the tax-decd issued thercon, are void.

ID. NOTIFICATION FOR RETURN OF REGISTERED LETTER.-There is no provision in that section making it any concern of the tax-collector whether, after he mails the notice, the party to whom it is mailed gets it or not. When he mails it in time, addressed, and registered, his duty is discharged. There is no requirement of the statute that he should put a notification on the letter calling for its return to his office in the event of non-delivery, and there is no warrant for placing a notification thereon calling for such return at any time earlier than the date set for the sale.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. W. R. Hervey, Judge.

The facts are stated in the opinion of the court.

C. A. Stice, for Appellant.

O. B. Carter, and Ralph A. Chase, for Respondents.

LORIGAN, J.-This is an action to quiet title to lot 22, block "S" of the Dayton Heights tract in the county of Los Angeles, plaintiff claiming title under a tax-deed from the state of California. It was stipulated on the trial that plaintiff had no other title to the lot, and that unless the tax-deed to him was valid, the title to the property is vested in the defendant, Ada R. Morrison.

The defendants had judgment, the decree requiring repayment to plaintiff (as defendants had offered in their answer) of the amount of the taxes, penalties, interests, and costs against the property, paid by plaintiff to the state on its sale of the lot to him.

It is only necessary on this appeal to consider one of the many points upon which it is claimed by respondents that the deed from the state under which plaintiff claims is void, and the judgment properly rendered in their favor.

The deed from the state, upon which appellant relied, was made by the tax-collector of Los Angeles County on behalf of the state pursuant to a sale at public auction, noticed for and held on February 19, 1909, and the deed recited, among other things, that on February 2, 1909, the tax-collector had mailed a copy of the notice of sale "postage thereon prepaid and registered, to the party to whom the lot was last assessed next before such sale."

Evidence was introduced on the part of respondents showing that the party to whom the lot was last assessed prior to the sale and her address as appeared from the assessment-roll, was "Mary E. Waldron, Los Angeles, Calif."; that on February 2, 1909, the said tax-collector mailed a registered letter containing a copy of the notice of sale of said property addressed to "Mary C. Waldron, Los Angeles, Calif."; that the registered letter bore a notification on the envelope "Return in 5 days to W. O. Welch, County Tax-Collector, Los Angeles, Cal." and that on the eighth day of February, 1909, said registered letter was returned to the office of said tax-collector by the postmaster. It was further proven that under the rules of the United States postal department governing the delivery of registered letters, if such a letter is not delivered or called for by the party to whom it is addressed, it is retained in the post-office for a period of thirty days, unless instructions on the envelope call for its return to the sender at an earlier date, in which case it would be returned to the latter pursuant to the instructions.

Section 3897 of the Political Code prescribing the proceedings to be taken on the sale of property which has been purchased by the state for delinquent taxes, requires that the taxcollector shall cause a notice of such sale to be published for three successive weeks prior to the date fixed for the sale, and in addition to such published notice "that it shall be the duty of the tax-collector to mail a copy of said notice, postage thereon prepaid and registered, to the party to whom the land. was last assessed next before the sale, at his last known postoffice address."

We held in Smith v. Furlong, 160 Cal. 522, [117 Pac. 527], that the giving of the notice by publication and the mailing of a copy of the notice to the party to whom the land was last assessed next before the sale, at his last known post-office address, were both jurisdictional prerequisites to a valid sale by the state, and that a failure to give the latter notice when the condition existed requiring it, rendered the sale and the deed thereunder void; that the recital in a tax-deed from the state on the matter of notice is not conclusive evidence on the subject, but prima facie evidence only and open to attack.

In making the sale in question here the tax-collector in an attempt to comply with the section, in addition to publishing the notice of sale, mailed a copy of the notice. As to such mailing it is, however, insisted by respondents that the action of the tax-collector in directing the letter to "Mary C. Waldron" instead of to "Mary E. Waldron," her proper name as it appeared on the assessment-roll, amounted to no notice at all. We do not stop to consider this point, but address ourselves to the more serious and vital one made by respondents as to the mailing itself of said notice,-namely, that within the contemplation of the section it was not mailed within the proper time; that when the condition exists requiring the taxcollector to give personal notice by mail to the person to whom the property was last assessed before the sale, it is necessary that such notice be given for at least the same period as the notice of sale is required to be published previously thereto, to wit, at least three weeks before the sale, and as it appears here that notice by mail was not given for that period, the tax-collector acquired no jurisdiction to make the sale or to execute a valid deed, and the trial court properly so held.

We are satisfied that this position of the respondent is correct. It is true that there is nothing in the section relating to the giving of personal notice by mail which specifically requires it to be given for any particular length of time, but when we take into consideration that the giving of notice by mail is made just as essentially a jurisdictional prerequisite to a valid sale as the publication of notice and the giving of both is provided for in the same section, it is only a proper and reasonable construction to hold that though specific direction is not given as to how long before the sale personal notice shall be mailed, the legislative intent is that it shall be given for the same period as notice by publication is required. The justness of this construction is strengthened when we consider the special purpose to be subserved by requiring personal notice. While the state might have sold the land without notice to the delinquent owner (Fox v. Wright, 152 Cal. 59, [91 Pac. 1005]), it deemed it proper in the exercise of that right to provide for giving him a last opportunity to redeem before the property would be lost to him. In providing for such notice the legislature made both publication and notice by mail, where the last post-office address was known, equally essential. It realized that published notice

of the sale, which is generally intended to accomplish the dual purpose of imparting notice to the delinquent owner that his property is about to be sold by the state and informing the public that they may purchase it, was not the most efficacious method of giving the delinquent owner a final opportunity to redeem, and so, in addition, personal service of notice by mail was provided for. It is quite obvious that the personal notice so required ordinarily affords a far better opportunity to the delinquent owner for obtaining notice of a contemplated sale of his property and permitting its redemption by him than is afforded by a publication, and certainly, in requiring the tax-collector under certain circumstances to give both, the legislature was providing as complete a method of protecting the delinquent owner against the loss of his property as could be reasonably devised, and undoubtedly, intended to make the method effective. No distinction, in terms, is made in the section between the period before the sale that publication shall be made and the time before the sale when the notice by mail shall be sent, and no valid reason can be suggested why a construction should be placed on the section making any such distinction. The period is fixed as to the time of publication prior to the sale; the section is silent as to the time of mailing notice prior thereto, but the subject with which the legislature is dealing is notice to the delinquent owner and the section prescribes that both notice by publication and by mail where residence is known are essential to the validity of a sale. As the giving of both kinds of notice is equally essential, it could not be the intention of the legislature to distinguish between the period for giving either; to fix definitely the period of publication and leave it to the discretion of the tax-collector (which would be the effect of any other construction) as to the time before the sale when he should give notice by mail. So construed the section would make a distinction between the importance and efficacy of the two essential kinds of notice provided to be given where it is certain that the legislature intended to make none. If the section were construed as leaving it to the discretion of the tax-collector to determine at what time prior to the sale he should mail notice, in many instances the attempt on his part to comply with the section would amount to practically no notice at all, as where the address of a party to whom the land was last assessed, as

« PreviousContinue »