Bruschi v. Cooper

This case was before the court and decided January 29, 1916, reversing the judgment of the lower court. A rehearing was granted and further light on the case invited, particularly upon the validity of the assessment, certificate of tax sale, and the tax deed involved in the action. In discussing the questions presented we found what seemed to us a very close analogy between the general code provisions for assessments and delinquent tax sales and the provisions of the Irrigation Act. Following the decisions of the supreme court as we understood them, we were constrained, with some reluctance, to hold the title asserted by defendants to be invalid. In reviewing the opinion heretofore filed in the case, respondents contend, first, that section 35 of the Irrigation Act (Stats. 1897, p. 254) does not require that “the property must be assessed to the owner.” The section does provide that the assessor “must prepare an assessment-book with appropriate headings, in which must be listed all such property within the district, in which must be specified, in separate columns, under the appropriate head: (a) the name of the person to whom the property is assessed (if the name is not known to the assessor the property shall be assessed to ‘unknown owners.’ ...” The assessment was made not “to unknown owners” but to a person named, viz., D. Brusehie. How far a mistake in the name may

Second. It is urged “that section 45 of that act does not absolutely require that the certificate of sale must state the name of the person assessed. Said section 45 requires the collector to make out in duplicate a certificate dated on the day of sale, stating (when known) the name of the person assessed, etc.” We have seen that the assessment was not to “unknown owners” but to a person named D. Bruschie, presumably believed by the assessor to be the owner. In making out his certificate the collector gave the name of the person to whom the property was assessed as D. Bruscia. It is claimed that the statute expressly makes the naming of the person assessed “subject to the condition that the assessor knows the name of the persons assessed.’-’ This may be so where the assessment is to “unknown owners,” but where an owner is named in the assessment and is named in the certificate, it cannot be said that it was the case where the person was unknown.

Third. It is contended that “the irrigation act does not require that an irrigation tax deed issued thereunder ‘shall correctly recite the name of the person to whom the property was assessed, as a condition of its validity,’ ” as held in the former decision. Section 47 provides: “If the property is not redeemed within the time herein provided, the collector, or his successor in office, must make to the purchaser, or his assignee, a deed of the property, reciting in the deed substantially the matters contained in the certificate, ’ ’ etc. It is true that the statute does not in terms require that the name of the person assessed must be recited in the deed, neither does it require a description of the property to be given, but we held, at the former hearing, that, in requiring the deed to recite “substantially the matters contained in the certificate,” the name of the person assessed should be regarded as among the substantial matters to be recited if the name in fact did appear in the certificate.

We fail to discover, upon a re-examination of the statutory provisions relating to the subject, any satisfactory grounds on which to reach a conclusion different from that expressed in our former opinion. And we therefore adopt that opinion, which is as follows;

“Defendant Williams answered: Denied generally and specifically the averments of the said complaint; alleged that the cause of action is barred by sections 318, 319, and 322 of the Code of Civil Procedure; and, as a separate defense, alleged that prior to the commencement of the action defendant was and he still is the owner in fee of the said lots; that, on February 20, 1906, said lots 30 and 31 were sold to satisfy the tax levied on said property last referred to by Modesto Irrigation District for the year 1905, which said tax had become delinquent; that at said sale M. L. Cooper became the purchaser and, no redemption having been made, a deed of conveyance to said two lots was, on March 4, 1907, made to said Cooper, ‘conveying to said M. L. Cooper absolute title to said real property’; that, on May 6, 1910, said M. L. Cooper conveyed said two lots to his wife, Ida B. ■ Cooper, and, on December 26, 1911, said Ida conveyed the same to defendant Williams, and ever since said date he has been the owner of said real property. Similar averments in said answer are set forth as to lots 28, 29, and 30, defendant Williams thus deraigning title thereto.

“As a further defense it is set forth that plaintiff is precluded or estopped from instituting or maintaining this action for the following reasons: That, on December 26, 1911, said property was conveyed to defendant by good and sufficient deed for a good and valuable consideration; that since said date ‘said defendant, at great cost and expense, to wit, about nine thousand dollars, has erected and built upon said premises a large and expensive building’ and has made other improvements on said real property amounting to one thousand dollars; that plaintiff ‘was fully cognizant of the erection of said building on said premises at the time said

“For a further defense, that plaintiff is estopped from maintaining the action for the following reasons: That plaintiff is guilty of loches in that he ‘abandoned said real property . . . and for many years prior to the commencement of the action, failed and refused to pay any taxes or assessments whatever levied upon or assessed against said property, . . . and that said real property and the whole thereof has frequently been sold for taxes,’ and that plaintiff purposely refrained from paying said taxes for the purpose of attempting to defraud the purchaser at any sale of said property for delinquent taxes; that plaintiff was well aware of all said assessments and sales of said property; that following said sales certificates of purchase were duly issued with plaintiff’s full knowledge and conveyance made without protest or objection by plaintiff.

“By way of cross-complaint, defendant sets up the facts first above stated as to the sale and purchase of said property for delinquent taxes and also pleads adverse possession by himself and predecessors in estate.

“Defendants Ida B. Cooper, Z. E. Drake, and F. E. Johnston answered: Denied plaintiff’s alleged ownership; alleged ownership in defendant Williams on December 26, 1911, at which time he, said Williams, conveyed the south sixty feet of said property by deed of trust in which said Williams was party of the first part, the said Drake and Johnston parties of the second part, and defendant Ida Cooper party of the third part, to secure to said Cooper the payment of two thousand dollars and other sums, no part of which has been paid, and said deed of trust is a lien on said property and is in full force and effect.

“Plaintiff answered the cross-complaint of defendant Williams: Denied the alleged adverse possession and denied that defendant Williams or his grantors or predecessors in interest have paid all or any taxes or assessments levied on said property; denied that plaintiff has no right, title, or interest in said property or that plaintiff’s claim is without right.

“The court made findings in favor of defendants: That at the commencement of the action plaintiff was not and is not now the owner of said property or any part thereof or any interest therein, and is not entitled to the possession thereof; that the alleged cause of action in plaintiff’s second amended .complaint is not barred by either section 318, 319,-or 322 of the Code of Civil Procedure; that, prior to the commencement of the action, defendant Williams was and now is the owner in fee simple of said property. The court found further : That on February 20, 1906, the whole of said property ‘was by the collector of Modesto Irrigating District sold to satisfy the assessment or tax levied and imposed on said real property by Modesto Irrigating District for the year 1905, which said assessment or tax had become and was delinquent at the time of said sale, said lots Nos. 30 and 31 of said block No. 33 in said city of Modesto being assessed and sold as one parcel to M. L. Cooper, and lots Nos. 28, 29, and 32 in said block No. 33 in said city of Modesto being assessed and sold as a separate parcel to said M. L. Cooper,’ and said Cooper became the purchaser of all said lots; that thereafter, on March 3, 1906, the said collector made out in duplicate a certificate stating name of the person to whom said property, to wit, lots 30 and 33, were assessed, a description of the land sold for assessment, giving the amount and year of assessment, and specifying the time when the purchaser, said Cooper, would be entitled to a deed; that said certificate was signed by said collector and a copy delivered to said purchaser and a copy filed in the office of the county recorder of Stanislaus County. Similar finding was made as to lots 28, 29, and 32; that, immediately after the delivery by said collector of said certificates to said purchaser, he, the said purchaser, entered into the actual possession of the whole of

“Judgment was accordingly entered quieting defendant Williams’ title to the property. Plaintiff appealed from the judgment under the alternative method.

“That the government title to the lots in question vested in Francisco Bruschi, father of plaintiff, by deed of Charles Crocker, November 8, 1882, seems not to be controverted. On January 1, 1883, Francisco conveyed lots 28, 29, and 32 to Dimetra Bruschi. The name ‘ Dimetra ’ may be said to mean the name ‘Demetra’ and would, in our opinion, fall within the rule idem sonans. The identity of name carries with it the identity of person. (Code Civ. Proc., sec. 1963, subd. 25.)

“As to lots 30 and 31, plaintiff claims as heir and as a distributee under the will of Rosa Bruschi, his mother. By the decree of May 27, 1905, in the estate of Francisco Bruschi, lots 30 and 31 were distributed to Rosa. The decree of distribution in her estate recites that ‘the residue of the estate, consisting of the property hereinafter particularly described, is now ready fbr distribution’; names certain nine heirs, among them a son, Demetrio M. Bruschi, and devises in equal shares ‘the residue of said estate of Rosa Bruschi, deceased, hereinafter particularly described and now remaining in the hands of said administratrix, and any other property not now known or discovered which may belong to the said estate.’ The property particularly described is $112.20 in money and a promissory note of $547.06. Plaintiff was shown to be the son and hence an heir at law of Rosa. We think it sufficiently appeared that he had a one-ninth interest in lots 30 and 31 which were devised to Rosa and of which the decree

“Upon the question of estoppel pleaded, no fact is found except that said certificate of sale and said tax title deeds were issued ‘without any objection on the part of plaintiff,’ which is not in itself sufficient to establish an estoppel. Plaintiff offers in his complaint ‘to pay to defendants or either of them such sum as the court may find that they are justly entitled to and offers to pay the same and to do equity in the premises.’ There is no finding as to what payment plaintiff should make to defendants in the event of plaintiff’s succeeding in thé action or what the court would deem equitable — whether such payment should include all taxes and cost or the improvements made upon the lots, or both. The court found for the defendant Williams and it was not necessary to deal with this feature of the case.

“If the findings may be construed as showing title in defendant Williams by adverse possession, they are not supported by the evidence. The period of five years after the execution and delivery of the tax deed had not elapsed before the action was commenced, although it had elapsed if the date of the certificate of sale may be considered. However, the lots were not inclosed until about the time the building was erected on them by Williams in 1911; they had been used as a dumping ground for sand and storage of some loose personal property by a man who paid Williams a rental for such use, but otherwise there was no occupancy of the lots. There was no evidence showing what portion of the lots was thus used, even if such use could be regarded as occupancy, which we do not think would be so regarded. (Code Civ. Proe., sec. 322; Cohen v. Anderson, 22 Cal. App. 634 ’, [ 135 Pac. 1096 ].) Defendant’s claim that he held under color of title by virtue of the certificate of sale cannot be sustained, for a certificate of purchase issued at a tax sale does not constitute color of title. (1 Cyc. 860, 1099.) There must be an apparent transfer of title. (1 Am. & Eng. Ency. of Law, 859, 973; Packard v. Moss, 68 Cal. 123 , [ 8 Pac. 818 ]; Salt Lake Investment Co. v. Fox, 32 Utah, 301 , [ 125 Am. St. Rep. 865 , 13 L. R. A. (N. S.) 627 , 90 Pac. 564 ], where the court said: ‘The fact that Moon went into possession under and by virtue of the tax sale certificate was, in effect, an admission on his

“The court found against defendants on their plea of the statute of limitations.

“It seems to us that the júdgment must stand or fall upon the strength of the title of defendant Williams derived through the tax proceedings which were taken under the act of March 31, 1897 (Stats. 1897, p. 254).

“Appellant relies upon the following points for reversal: 1. Insufficiency of the assessment; 2. Invalidity of the certificate of sale; 3. Insufficiency of the deed made pursuant to the sale.

“The assessment is attacked on the grounds: (a) That the assessment levied to pay the general expenses of the district is not segregated from the assessment to pay annual interest on outstanding bonds; (b) that noncontiguous lots are not separately assessed.

“The assessment was made pursuant to the authority of the above-mentioned act. Lots 28, 29 and 32 were assessed to D. Bruschie and lots 30 and 31 to F. Bruschie, and in each case the assessment was of the group of lots and not separately ; also, the valuation was made on each group as a whole and not separately. As we have reached the conclusion that the certificate of sale and the deed of the collector of the district to defendant Williams are invalid, we refrain from passing upon the objections raised to the assessment.

“Section 48 of the act is relied upon by defendants as validating any and all the tax proceedings under which they claim. The construction given this section by the supreme court may as well be shown here as elsewhere. After stating that certain matters recited in the certificate of sale ‘must be recited in the deed,’ and that ‘such deed duly acknowledged or proved is prima facie evidence of such matters, ’ the section reads: ‘Such deed duly acknowledged or proved is (except as against actual fraud) conclusive evidence of the regularity of all the proceedings from the assessment by the assessor, inclusive, up to the execution of the deed. The deed conveys to the grantee the absolute title to the lands described therein free of all encumbrances, except when the land is owned by the United States, or this state, in which case it is prima facie evidence of the right of possession. ’

“In Bank of Lemoore v. Fulgham, 151 Cal. 234 , 239, 240, [ 90 Pac. 936 ], the scope of the conclusive evidence clause is defined. Section 3680 of the Political Code provides that upon all bills or statements there must be stamped the words ‘sold for taxes’ and the date of sale. In the case before the court this memorandum was not made, and it was urged that this provision was intended as notice required to be given the owner, and a failure to give it deprived him of his property without due process of law. The court said: ‘Of course it is true that the legislature has not the power to make such a certificate or deed conclusive as to any of the essentials of the listing, valuation, apportionment, or notice (Cooley on Taxation, pp. 355, 356; 1 Blackwell on Tax Titles, sec. 640), but it can make the certificate or deed conclusive as to matters or things which in the first instan.ee the legislature might not have required to be done, and which are in their nature,

“The invalidity of the certificate of sale is urged: (a) because it is not dated on the day of the sale; (b) it does not specify when the purchaser will be entitled to a deed; (c) it does not give the name of the person assessed. The certificates are identical in substance. Taking the certificate of the sale on the assessment to D. Bruschie, it states that the property, describing it, was duly assessed as required by law, by the proper officers of said district and for the purposes thereof, in the year 1905; that the name of the person so assessed was D. Bruscia; that said property was equalized as required by law; that the assessments were levied in accordance with law and the amount of the assessment is the sum of $8.16 and the year of the assessment 1905; that ‘the assessments were not paid; that at the proper time and place, after all due and legal proceedings heretofore had, I did, on this twentieth day of February, 1906, offer the said real estate (describing it, being lots 28 and 29) for sale for said assessments’ ; that M. L. Cooper became the purchaser. ‘ Said property may be redeemed within twelve months from the date of said purchase, viz., this twentieth day of February, 1906, by the person and in the manner as provided by law and if the property is not so redeemed, said purchaser will, on or after said expiration of twelve months from the date of sale and purchase and after having complied with the provisions of the law relating to his right thereto be entitled to a deed. ’ The certificate then states that a description of the land as in the certificate has been entered in a book kept as a record by said district known as volume 1, Certificate of Sale, which description is numbered 809 on the margin and is put on this certificate as the number thereof.

“ ‘In witness whereof I have signed this certificate, and filed a duplicate thereof in the office of the county recorder of the said county of Stanislaus, in which said land sold is situated, this third day of March, 1906. G-. R. Stoddard, Collector of Modesto Irrigation District.’

“The objection to the deed is the same as one of the objections to the certificate of sale — that the party assessed is ‘D. Bruschie, ’ whereas the name of the person assessed as given in the certificate and deed is ‘D. Bruscia. ’ Section 35 of the Irrigation Act requires the assessor of the district to assess all the real property of the district to the persons who

“Appellant relies upon Henderson v. De Turk, 164 Cal. 296 , [ 128 Pac. 747 ], In that case defendant claimed solely upon a deed from the state based on a sale and alleged deed to the state on account of delinquent taxes. The deed to the state recited the name of the person assessed as ‘E. W. Davis, ’ while the assessment was to ‘E. W. Davies,’ Section 3785 of the Political Code provided that the deed must recite, among other things, ‘the name of the person assessed. ’ It was held that ‘this means, of course, the name of the person assessed as it appears on the assessment-roll, ’ and that a deed which ‘misrecites or fails to recite any one of the facts required by statute to be recited therein is void. ’ It was also held, on the authority of Emeric v. Alvarado, 90 Cal. 444 , 465, [ 27 Pac. 356 ], that the rule of idem sonans does not apply ‘to assessments and other cases of description, where the written name is material. ’ It was further held, in the Henderson v. De Turk case, that the failure of the deed to recite correctly the name of the party assessed is not remedied or cured by either the section 3807 or 3628 of the Political Code, because section 3628 refers only to the assessment which is not rendered invalid by reason of a mistake in the name of the owner. Section 3807 provides: ‘When land is sold for taxes correctly imposed as the property of a particular per

‘ ‘ Turning to the Irrigation Act, we find, as already pointed out, that section 35 makes it the duty of the assessor to assess all real property at times stated. ‘He must prepare an assessment-book, with appropriate headings, in which must be listed all such property within the district, in which must be specified, in separate columns, under the appropriate head: (a) The name of the person to whom the property is assessed (if the name is not known, ... to unknown owners); (b) land (describing it) . . .’ On the last day of December of each year, ‘all unpaid assessments are delinquent,’ etc. (Sec. 41.) Sections 42 and 43 provide how the delinquent tax sale is to be conducted and who may purchase, etc.. Section 45 provides for issuing a certificate of sale to the purchaser: ‘After reciting the amount of assessments and costs, the collector must make out in duplicate a certificate dated on the day of sale, stating (when known) the name of the person assessed, ’ etc., and section 46 provides that, before delivering any certificate, the collector ‘must in a book enter a description of the land sold, corresponding with the description in the certificate, the date of sale, purchasers ’ names, and amount paid, ’ etc., but does not require to be entered in this book the name of the person assessed, as does the certificate. Section 47 provides how and when redemption may be made, and section 48 provides that if the property is not redeemed, the collector ‘must make to the purchaser, or his assignee, a deed of the property’ and ‘such deed duly acknowledged or proved is prima facie evidence that’ — then follow the seven several facts thus made prima facie evidence, and the conclusive evidence clause already quoted. Section 50 is the same

“As to section 50, which is the same as section 3807 of the Political Code, the case cited holds that it ‘cannot be held to dispense with the requirement that the deed shall correctly recite the name of the person to whom the property was assessed, as a condition of its validity.’ As to the conclusive evidence provision, holding it to mean, as we do, the same as the like provision in the Political Code (sec. 3187), the court said, in the case cited, that said section ‘makes such tax deed evidence of regularity of such proceedings as are named therein only when it is a deed conforming to the requirements of the law,’ that is to say, in the case then before the court, conforming to the requirement that the deed must correctly recite the name of the person to whom the land was assessed.

“We are brought to the single consideration — Is the requirement in the certificate of sale and in the deed that there must appear therein ‘the name of the person assessed’ — such an essential in the proceedings as could not be dispensed with by the legislature, or may it be classed as a nonessential and subject to the rule laid down in Bank of Lemoore v. Fulgham, 151 Cal. 234 , [ 90 Pac. 936 ], where it was held that the legislature can make the certificate or deed conclusive as to matters or things which in the first instance the legislature might not have required to be done, and which, in their nature, therefore, are nonessentials? It was said, in the case cited, that the legislature has not the power to make such a certificate or deed conclusive as to any of the essentials of listing, valuation, apportionment, or notice. (Cooley on Taxation, pp. 355, 363; Blackwell on Tax Titles, sec. 640.) What is meant by ‘listing’ the land? Mr. Cooley says: ‘An assessment consists of two processes of listing the persons, property, etc., to be taxed, and of extending the sums which are to be the guide in an apportionment of the tax between them. ’ (1 Cooley on Taxation, p. 596.). Mr. Black says: ‘Statutes

“It seems to us that the ‘listing’ of land, for assessment necessarily means that the name of the owner, if known, and a description of the property assessed must be stated and, as was held in the De Turk case, ‘correctly stated.’ In the present case, the assessment was to ‘D. Bruschie. ’ The certificate of sale and the deed recited the name as ‘D. Bruscia.’

“We confess to some regret at riot being able to find some way to escape from following the rule laid down in Henderson v. De Turk, 164 Cal. 296 , [ 128 Pac. 747 ], The record shows that the state and county tax on these lots was delinquent for several years prior to 1905, and they were sold to the state and were redeemed by Cooper after he purchased the land at tax sale in 1906. The owners seem to have paid no heed to their duty to the state and not until valuable and expensive improvements were in good faith put upon the lots did they assert any claim to them. The law, however, we conceive to be the same, under the facts appearing, as if no improvements had been made on the lots, and we are constrained to follow the law as our supreme court has established it.

“We have vainly tried to convince ourselves that the name of the owner cannot be deemed an essential in the assessment on the theory that section 3628 of the Political Code and section 50 of the Irrigation Act expressly provide that no misnomer of the owner ‘ affects the sale, ’ and on the theory that if the name is not known to the assessor the assessment may be made to ‘unknown owners.’ It might be said that the owner of the land is presumed to know its description, and that the recorded duplicate certificate is notice to him if it correctly describes the land, whether or not his name appears as the owner, and hence, ‘the name of the person assessed’ might be dispensed with by the legislature as a nonessential. We cannot accept such reasoning as sound, for we are always brought back to the proposition that the essential requirement of ‘listing’ land for assessment necessarily involves the

The judgment is reversed.

Hart, J., and Ellison, J., pro tern., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 3, 1916, and the following opinion then rendered thereon:

The petition for a rehearing of this cause in the supreme court is denied.

Nothing in the opinion should be deemed to hold that the correct name of the owner is so essential to a tax assessment or a certificate of tax sale that an error therein as to the name of the owner cannot he cured by the section making the deed conclusive evidence of the regularity of the assessment and certificate. The decision can be supported on the ground that the conclusive evidence clause does not extend to defects in the deed itself, as was held in Henderson v. De Turk, 164 Cal. 296 , [ 128 Pac. 747 ].

Melvin, J., Lorigan, J., Sloss, J., and Lawlor, J., concurred.