may rely on the presumption that the testator was of sound mind at the time of the execution of the will. Such presumption is evidence in his favor. The circumstances attending such execution and the conduct of the testator at the time may also be considered on that point. In the present case the sanity of the testatrix was sufficiently established by this presumption and by the circumstances indicating that she was at the time acting in a rational manner. This evidence may have been slight, but it was sufficient to make out a prima facie case and it fully warranted the denial of the motion for a nonsuit, or dismissal of the cause, made by the contestant at the close of the proponent's preliminary proof.

The absence of one of the subscribing witnesses was sufficiently explained. The persons who were believed to be the subscribing witnesses were called to testify. One of them had no recollection whatever of the matter. The other testified to the execution of the will, and the attestation by himself and the other person as witnesses. The attestation of a will is not a matter of great importance to the witnesses, and a failure by such persons to remember the occurrence is not so unusual as to justify the refusal of probate on that account, if there is other satisfactory evidence of the due execution.

With respect to the insufficiency of the proof of the destruction of the will we may add, that if the court believed from the facts we have mentioned that the will was in existence after the death of the testator, and that it was locked in her trunk a day or two before her death and while she was in her last sickness, it may have believed the testimony of the two witnesses, Della Sherbourne and Mrs. Beard, to the fact of the destruction of the paper found in the said trunk, and have refused to believe their statements that it was unsigned. This was a matter addressed to the conscience of the trial judge, and we cannot interfere with his decision on the subject.

The judgment admitting the will to probate and the order refusing a new trial are affirmed.

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

[L. A. No. 1998. Department One.-January 31, 1908.]

T. J. STEELE, Appellant, v. COUNTY OF SAN LUIS OBISPO, Respondent.

TAXATION-RECOVERY OF TAXES AFTER PAYMENT-MERE IRREGULARITY IN TAX PROCEEDING.-The rules based upon the maxim that he who seeks equity must do equity, are applicable in suits to recover taxes paid. The idea upon which such a suit is predicated is that the county or municipality has received that which in justice it ought not to retain, and, therefore, when the tax proceedings have been simply irregular, the action will not lie. The action only lies where the tax was void and a mere nullity. Section 3819 of the Political Code, providing for the recovery of taxes paid on void assessments, was not intended to lay down any different rule.

ID. OMISSION OF AFFIDAVITS FROM ASSESSMENT-BOOK.-Where an assessment and the tax levied thereon were in all other respects valid, the mere omission from the assessment-book of the affidavits required by sections 3682 and 3732 of the Political Code, by the clerk of the board of supervisors and the county auditor, will not warrant the recovery of such tax after it has been paid.

APPEAL from a judgment of the Superior Court of San Luis Obispo County, and from an order refusing a new trial. E. P. Unangst, Judge.

The facts are stated in the opinion of the court.

McD. R. Venable, Albert Nelson, and Wm. Shipsey, for Appellant.

Chas. A. Palmer, and W. H. Spencer, for Respondent.

ANGELLOTTI, J.-This is an action to recover certain state and county taxes for the fiscal year 1904-5, with penalties and costs, paid by plaintiff and his assignors under protest. Defendant had judgment, and plaintiff appeals from such judgment and from an order denying his motion for a new trial.

The payments were made by the taxpayers on the day noticed by the tax-collector for the sale of the property for delinquent taxes, and were made for the purpose of prevent

CLII Cal.-50

ing such sale and the issuance of certificates of sale thereon. The basis of plaintiff's claim was the failure of the clerk of the board of supervisors, when delivering the assessment-book after equalization by the board to the county auditor to accompany the same with his affidavit as required by section 3682 of the Political Code, and the failure of the auditor to make or attach to the assessment-book the affidavit required by section 3732 of the Political Code. Section 3682 requires the clerk to accompany the book with his affidavit to the effect that as clerk of the board he has kept correct minutes of all the acts of the board touching alterations in the assessmentbook, and that all alterations agreed to or directed to be made have been made and entered in the book, and that no changes or alterations have been made therein except those authorized. No such affidavit was made by the clerk when he delivered the book, or until after publication of the delinquent list and notice of sale. Two days before the day noticed for sale, he did make, subscribe, and attach to the book an affidavit in the form prescribed by the section of the code. Section 3732 requires the auditor, after computing the taxes on the various assessments, to deliver the corrected assessmentbook, on or before the second Monday in October, to the tax-collector, with an affidavit attached thereto and by him subscribed, stating that he received the assessment-book of the taxable property from the clerk of the board of supervisors with his affidavit thereto affixed, and that he has corrected it and made it to conform to the requirements of the state board of equalization, that he has reckoned the respective sums due on taxes, and has added up the columns of valuation, taxes, and acreage as required by law. This affidavit was never made. As a matter of fact, no change or alteration of any kind had been made by the board of supervisors or clerk in said assessment-book, and the county auditor had complied with all requirements of the law as to the computing of the taxes fully and completely, and delivered the book with the taxes so computed thereon to the tax-collector at the appointed time. The various assessments were in all respects valid save for the omission of such affidavits, and the amounts designated as taxes opposite the respective assessments were the amounts of taxes due from the various taxpayers for state and county taxes for the fiscal year 1904-5.

We are satisfied that under such circumstances the plaintiff should not be allowed to recover the taxes paid by him and his assignors. It may be conceded, in accord with the decision of this court in Miller v. County of Kern, 137 Cal. 521, [70 Pac. 549], that without such affidavits annexed to the assessment-book the assessments were defective and not legally enforceable by the tax-collector. They were defective and non-enforceable, however, solely because they were not properly authenticated by affidavits of the clerk and auditor showing certain requisites to have been complied with. When it was made to appear in this action that all such requisites had in fact been complied with by these officers, there was presented simply a case of taxpayers who have paid only their fair and just proportion of the taxes levied for the year, seeking to recover the same upon what has been made to appear is, under the facts, a most technical defect in no degree affecting any substantial right. Such a case is clearly subject to the doctrine enunciated in Couts v. Cornell, 147 Cal. 560, [109 Am. St. Rep. 168, 82 Pac. 194]. That action, it is true, was one in equity, the plaintiff seeking a decree declaring certain assessments and the sales and certificates thereunder invalid because of a technical defect in the description of property in the assessment, and enjoining the issuance of any deed in pursuance of such certificates. But the rules based upon the maxim that he who seeks equity must do equity are applicable in suits to recover taxes paid. The idea upon which such a suit is predicated is that the county or municipality has received that which in justice it ought not to retain, and, therefore, when the proceedings have been simply irregular, the action will not lie. There must be something further. The tax must be void, a mere nullity. (Cooley on Taxation, 3d ed., p. 419.) Section 3819 of the Political Code, providing for the recovery of taxes paid on void assessments, was not intended to lay down any different rule. In accord with the views expressed in Couts v. Cornell, supra, plaintiff and his assignors, under the facts here appearing, justly owed the several amounts of taxes charged against them on the assessment-book. There was a valid existing obligation upon them to pay such taxes. Assuming that payment thereof could not have been enforced in the absence of the affidavits required by statute, and that a sale by the tax-collector

under those conditions would not have passed the title, that case establishes that they could not, without paying or offering to pay the taxes due, have obtained a decree relieving their property from the cloud created by the assessment or preventing the execution of a deed purporting to convey that property for delinquent taxes. Instead of asking this wellrecognized equitable relief, they have discharged their obligations by paying the amount thereof, and now claim to be entitled to recover the amounts they owed and paid, not on the ground that they did not justly owe the same, but solely because of what has been shown to be a technical omission in the assessment-book by the clerk and auditor. The answer to their claim must be the same as was the answer to the claim of plaintiff in Couts v. Cornell, supra.

No special claim has been made in regard to such portion of the amount as was paid for penalties and costs, and we have not, therefore, felt called upon to consider whether a recovery should be had therefor, even though the taxes themselves are not recoverable. Plaintiff and his assignors are entitled to no particular consideration in this regard, as it must have been apparent to them that they were relying upon a pure technicality to save them from paying the taxes they justly owed.

The judgment and order are affirmed.

Shaw, J., and Sloss, J., concurred.