TAXATION (Continued).

IN

50. AMOUNT FOR WHICH LAND WAS SOLD TO STATE-RECITALS DEED NOT EVIDENCE OF AMOUNT DUE.-The recitals in a deed of land sold to the state for delinquent taxes are not evidence of the amount of taxes, costs, and charges actually due, and a recital of the amount for which the property was sold to the state furnishes no evidence that such amount was in excess of the actual amount due for taxes, costs, and charges. (Rimmer v. Hotchkiss, 385.)

51. ASSESSMENT OF IMPROVEMENTS ON LAND SEPARATE CHARGE OF FIFTY CENTS NOT AUTHORIZED.-Section 3770 of the Political Code, directing the tax-collector to collect, in addition to the taxes due on the delinquent list, together with the penalties for delinquency, "fifty cents on each lot, piece, or tract of land separately assessed, and on each assessment of personal property," does not authorize him to collect a charge of fifty cents on account of the assessment of the improvements situated on the land assessed, notwithstanding such improvements, by section 3627 of the Political Code, are required to be assessed separately from the land. (Id.)

(Id.)

52. SALE FOR EXCESSIVE AMOUNT INVALIDATES DEED.-The inclusion in the amount for which land was sold to the state for delinquent taxes of a charge of fifty cents on account of the assessment of the improvements on the land renders such sale excessive, and invalidates it and the deeds founded thereon. 53. QUIETING TITLE AGAINST INVALID TAX-Deed-Decree-FAILURE TO PROVIDE FOR REFUND OF TAXES DUE-APPEAL.-A decree quieting title to land against an asserted claim founded on an invalid taxdeed from the state, will not be reversed for the failure of the trial court to provide therein for the payment to the defendant of the amount of money expended for the taxes, costs, and charges actually due, where no right to such reimbursement was asserted by the defendant in the trial court, either by pleading or otherwise. (Id.) 54. SALE BY STATE AFTER AMENDMENT OF 1905 TO SECTION 3897 OF POLITICAL CODE-FAILURE TO MAIL NOTICE OF SALE-VOID SALE. -A sale by the state of land acquired by it for delinquent taxes, which was made after the taking effect of the amendment of March 1, 1905, to section 3897 of the Political Code, and without the mailing of a notice of such proposed sale, as required by that amendment, "to the party to whom the land was last assessed next before the sale," if his address was known, is void, notwithstanding the proceedings for the sale were initiated prior to the amendment, when the statute contained no provision requiring such a notice by mail. (Canty v. Staley, 379.)

55. QUIETING TITLE UNDER VOID TAX-DEED JUDGMENT FOR DEFENDANTS-IMMATERIAL OMISSION ΤΟ FIND RESPECTING TENDER OF TAXES-FAILURE OF EVIDENCE OF PAYMENT.-In an action to quiet title by one claiming under a void tax-deed from the state, in which the court rendered judgment for the defendant upon evidence establishing the invalidity of the plaintiff's deed, the failure of the court

TAXATION (Continued).

to find upon certain allegations contained in the defendant's answer on the subject of an attempted tender to plaintiff of the amount alleged by him to have been expended by him in connection with his attempted purchase from the state, is immaterial, where the plaintiff, at the trial, offered no evidence showing such expenditures. (Id.) 56. SALE BY STATE OF LANDS ACQUIRED FOR DELINQUENT TAXESNOTICE 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 required 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. (Healton v. Morrison, 668.)

57. TIME OF MAILING NOTICE-THREE WEEKS BEFORE DATE OF SALE.Although 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-deed issued thereon, are void. (Id.)

58. 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. (Id.)

59. DESCRIPTION OF LAND IN TAX-DEED BY REFERENCE TO BLOCK-EviDENCE OF LOCATION-CERTAINTY OF DESCRIPTION.-A description of property in a tax-deed as "Lying and being in the county of Kern, state of California and described as follows, to wit: E. % of block 2, Kelly's Addition to Delano," may be explained and rendered certain by the introduction in evidence of the recorded map of Kelly's addition to Delano, accompanied by proof of the location of the block on the ground and that it was marked by stakes set at each corner, and that there was no other recorded map of the addition. (Fitzimons v. Atherton, 630.)

See Adverse Possession.

TENANTS IN COMMON. See Water and Water-Rights, 9, 14; Wills, 27, 29, 32.

TIDE LANDS.

1. PUBLIC TRUST FOR NAVIGATION AND FISHERY-TITLE CANNOT BE ACQUIRED BY PRESCRIPTION.-Tide lands situated upon a navigable estuary, and over which the ordinary tides regularly ebb and flow, are charged with a public trust for the purposes of navigation and fishery, and no title thereto can be obtained by any private person by prescription. (Cimpher v. City of Oakland, 87.)

2. POSSESSION CANNOT DEFEAT TITLE OF DEFENDANT.-The fact of possession by plaintiffs of such lands is good to defeat the defendant's claim thereto only in case the defendant shows no right or title thereto.

(Id.)

3. TIDE LANDS GRANTED TO TOWN OF OAKLAND-CITY COULD NOT CONVEY UNDER MERE RESOLUTION OF COUNCIL.-Tide lands included within the limits of the city of Oakland, which were granted to the town of Oakland by the act of 1852 incorporating such town, (Stats. 1852, p. 181), and to which the city succeeded as the successor of the town, (Stats. 1854, p. 187, sec. 12), could be granted or sold by the city under its charter of 1862, (Stats. 1862, p. 338 et seq.), only in the manner thereby prescribed. An attempted disposition of such land, in pursuance of a mere resolution of the city council, did not conform to the requirements of such charter and was wholly ineffectual. (Id.)

4. CONSTITUTIONAL LAW-TIDE LANDS MAY BE GRANTED TO MUNICIPAL CORPORATION.-Section 3 of article XV of the state constitution, providing that all tide lands within two miles of any incorporated city of this state and fronting on the waters of any estuary or bay used for navigation "shall be withheld from grant or sale to private persons, partnerships, or corporations," does not prohibit the grant by the state of such lands to municipal corporations, and such a grant must be deemed to be within the general powers of the legis lature. (Id.)

5. LANDS GRANTED TO MUNICIPALITY ARE SUBJECT TO CONSTITUTIONAL PROHIBITION.-When such lands are granted by the state to a city, the constitutional prohibition still protects them from grant or sale to private persons, private partnerships, or private corporations, except as it may be properly disposed of in furtherance of the trust upon which it is held, that is to subserve the public uses of navigation and fishery. (Id.)

6. GRANT OF TIDE LAND TO CITY OF OAKLAND BY ACT OF 1909 NOT SPECIAL LEGISLATION.-The act of March 22, 1909, granting to the city of Oakland all the interest of the state in certain described tide lands, does not come within the constitutional inhibition of local special legislation. (Id.)

TIDE LANDS (Continued).

7. STATUTE OF LIMITATIONS DOES NOT RUN AGAINST STATE OR CITY.— Where no attempt had been made and no steps taken by any public authority, to abandon the public use of such tide lands and convert them into proprietary lands not dedicated to public use, the statute of limitations does not run in favor of a party in possession, either against the state or the city. (Id.)

8. SAN PEDRO HARBOR-LEASE BY CITY.-Judgment and order affirmed on the authority of San Pedro etc. Railway Co. v. Hamilton, 161 Cal. 610. (San Pedro, Los Angeles and Salt Lake Railroad Company v. Lee, 761.)

See Municipal Corporations, 19-25.

TORT. See Contribution.

TRUST.

See Estates of Deceased Persons, 21-24; Tide Lands, 1; Wills, 25-32.

TUNNELS. See Municipal Corporations, 1-12.

UNDUE INFLUENCE.

1. PLEADING-SUFFICIENCY OF COMPLAINT SETTING ASIDE ASSIGNMENT OF BANK DEPOSIT.-In an action to set aside the gift or assignment of a savings bank deposit on account of the undue influence of the assignee, the complaint, as against a general demurrer, states a cause of action, if it alleges excessive infirmities of mind and body of the assignor, specific false representations by the assignee, and the successful accomplishment of a fraud growing out of this alleged undue influence in inducing the assignor to execute the gift and assignment without an understanding of the act. (McKenna v. McKenna, 340.)

2. HOW UNDUE INFLUENCE SHOULD BE ALLEGED.-In pleading undue influence it is not sufficient merely to state the nature of the undue influence, but the facts should be alleged with certainty and expressly connected with the transaction sought to be invalidated. (Id.)

3. SETTING ASIDE ASSIGNMENT OF BANK DEPOSIT.-The judgment herein is reversed on the authority of McKenna v. McKenna, ante, p. 340. (Estate of Styles, 763.)

See Wills, 4-20.

VENDOR AND VENDEE.

1. TIME ESSENCE OF CONTRACT-FORFEITURE BY VENDEE SUBSEQUENT TENDER OF PAYMENT BY VENDEE-RECOVERY OF INSTALLMENTS PAID.-Under a contract for the sale of land, in which time is made of the essence of the contract and performance by the vendee is

VENDOR AND VENDEE (Continued).

made a condition precedent to a conveyance, and upon breach thereof he is declared to forfeit all rights thereunder, including payments made thereon, the vendee cannot, after his default, without excuse shown therefor, by a tender of the amount due, acquire an equitable or a legal right to maintain an action to recover back the moneys paid under the contract. (Skookum Oil Company v. Thomas, 539.)

2. VENDOR NOT PUT IN DEFAULT BY MERE TENDER.-The purchaser cannot, in such case, put the vendor in default by mere tender, nor can he elect to consider the contract at an end, and recover what he has paid on it, where the vendor has not abandoned it, but stands upon its terms and conditions. (Id.)

3. RESCISSION OF CONTRACT-REFUSAL OF VENDOR TO ACCEPT TENDER. -Under such a contract the refusal of the vendor to accept a tender made by a purchaser in default, and to convey to the purchaser after such default, does not effect a rescission of the contract, nor entitle the vendee to recover the money paid. (Id.)

4. EQUITY WILL NOT RELIEVE FROM UNEXCUSED DEFAULT.-Equity will not relieve such purchaser who has made an unexcused default and has not fulfilled conditions precedent to the vesting of his right of action.

(Id.)

5. RIGHT OF VENDOR TO RETAIN PURCHASE MONEY UPON VENDEE'S DEFAULT.-The vendor's right to retain the purchase money, where default was unexcused, is independent of any express clauses in the contract for forfeiture of rights, or for the retention of the purchase money as liquidated damages, and such express clauses are but declarations in express terms of the legal rights of the parties under such a contract, existing without them. (Id.)

6. TIME WHEN MADE ESSENCE OF CONTRACT-PROVISION FOR FORFEITURE.-Time may be made of the essence of such a contract without employing that precise expression, and is so made when the contract expressly provides that upon the failure of the vendee to comply with the conditions therein set forth, any payments made by him to the vendor should be forfeited to the latter as liquidated damages, and when it was provided in an extension of time subsequently given for the payment of the first installment of the purchase price, that if the vendee did not elect to purchase the land, the vendor should retain the consideration paid for the extension as liquidated damages. (Id.)

7. AGREEMENT FOR ABANDONMENT AND RESCISSION.—After the vendee's breach the vendor may agree to a mutual abandonment and rescission, in which instance alone the vendee in default would be entitled to a repayment of the part of the purchase price paid. (Id.) 8. TIME ESSENCE OF CONTRACT IN CASE OF SALE OF MINING PROPERTY. -The inquiry whether time is of the essence of the contract is to be determined from the terms of the contract, but some consideration