Curtin v. Kingsbury

Mandate. It appears by the petition that, on November 19, 1901, the state of California issued its certificate of purchase to one J. Frank Miller for all of section 36, township 9 south, range 19 east, M. D. B. & M., in Madera County, for which he paid twenty per cent of the purchase price of $1.25 per acre, said land being “only fit for grazing purposes”; that there remained due to the state one dollar per acre, or $640, with interest at seven per cent per annum; that, in 1904, said Miller assigned said certificate of purchase to plaintiff Curtin and W. C. Hensley, who “entered into the possession of said land and became and were the sole owners thereof, subject only to the paramount title of the state. ’ ’ On February 21,1910, said Hensley died and thereupon petitioner R. C. Jay was appointed and now is administrator of his estate. On June 22, 1907, the land in controversy was sold to the state for nonpayment of taxes, followed by a deed to the state dated July 16, 1912. On June 13, 1913, petitioner Curtin applied for and received from the auditor of Madera County an estimate of the amount necessary to redeem said land from tax sale, and, on the same day, paid to the treasurer of said county the amount of said estimate, together with other delinquent taxes on the land, which “redemption was duly recorded, and it was noted upon the recorded certificate and the recorded tax deed that the land was redeemed”; on September 10, 1915, at the request of petitioners, the auditor and treasurer furnished them “a statement of all interest then due and unpaid on said” land, and petitioners paid to the treasurer the amount shown by said statement. It is then alleged that the certificate of sale issued to said Miller has been lost, and that the defendant refuses to accept from the treasurer of Madera County the amounts paid by petitioners and refuses to issue a new certificate of purchase in lieu of the lost one. It is alleged, upon information and belief, that there are no claims adverse to petitioners to said land. There is also an allegation “that no foreclosure for nonpayment of interest ever was had or attempted in the matter of the delinquency in payment of

The issue presented is raised by a general demurrer filed by respondent to the petition.

By an act approved May 14, 1915 (Stats. 1915, p. 605), which, for convenience, will hereinafter be referred to as chapter 389, it was provided that “the unsold portions of the sixteenth,, and thirty-sixth sections of school lands . . . shall be sold at public auction by the surveyor-general.” It is the contention of respondent that “under this method all applications to purchase school lands at a fixed statutory price are abolished. Nobody can apply to purchase lands of the character described in the act. Intending purchasers must attend the sale at the time and place stated in the notice of sale and there bid in open competition against any and all other persons who desire to acquire the land,” and respondent maintains that “this act conflicts with the provisions of section 3788 of the Political Code in toto, and with so much of section 3817 as affects school lands”; that “under the law as it stood when the sale was made the sole remedy of the delinquent purchaser was to repurchase the land within six months from that date”; that the delinquent purchaser had no vested right to redeem the property, his only right being a preference given him to repurchase within six months; and that this privilege was withdrawn by chapter 389, supra.

Petitioners’ reply to the above contention that “the state may diminish the penalties, extend the time for redemption or lessen the burden upon the delinquent taxpayer, but the state cannot increase the penalties, shorten the time for redemption, or add further penalties, burdens, and conditions of redemption, after the date of sale to the state,” and “none of the statutes relied upon by the defendant purport to be retroactive.”

The method prescribed by section 3817 of the Political Code in 1883 for the redemption of school lands sold for delinquent taxes applied only to purchasers who had paid “the full amount of one dollar and twenty-five cents per acre.” (Stats. 1883, p. 23.) This section remained unchanged until

We have seen that the taxes became delinquent and the land was sold to the state in 1907 and a deed made to the state in 19.12, which was duly filed with the surveyor-general. Had no other statute intervened, plaintiffs’ right would have been that of a preferred purchaser and not of a redemptioner.

The payments made by plaintiffs to the county treasurer, as appears from the petition, seem to have been made as redemptioners, whereas, whatever right they had was given to them by the statute as preferred purchasers. It is perhaps immaterial whether these payments were made as redemptioners or as purchasers if they were sufficient to comply with the law applicable when the payments were made. Now, the sale to the state for delinquent taxes extinguished all rights of plaintiffs to the lands subject to the right of redemption during the five years’ period and before the deed passes the legal title to the state. Such sale vests the equitable and the deed the legal title of the land in the state. (Santa Barbara County v. Savings & Loan Soc., 137 Cal. 463 , 465, [ 70 Pac. 457 ].) As against the state the property owner at the end of five years has forfeited all rights to the property, except the privilege accorded him by the statute of redeeming it at any time before the state actually enters, sells, or

In 1907, when the land was sold for delinquent taxes, plaintiffs’ right under the amendments to the Political Code by the act of 1895 was that of a preferred purchaser for the period of six months after the deed is filed with the surveyor-general. (Pol. Code, see. 3788.) They did not avail themselves of that right, and it was lost to them. By the acts of 1909 the state offered to restore them “to their former state and title” upon conditions more favorable than were given by the act of 1895, for they were allowed to comply with the statute as preferred purchasers within six months, and were to be restored to their title at any time before another application was made for the same land, and upon terms no different than were imposed by the act of 1895, except that the payment of interest upon the unpaid purchase price was required to be paid. As this was an obligation attached to the original contract, its payment cannot be regarded as an additional burden. But whether it was or not, we think the state had the right, as the absolute owner of the land under the tax deed, to dictate the terms upon which it might be repurchased by the original or a new purchaser, or the conditions upon which the purchasers or owners or their assigns might be restored to their original state and title.

The payments made by the plaintiffs to the county treasurer were made June 13, 1913, at which time no other application had been made to purchase the land, but the payment did not include interest, and no interest was then paid or tendered, and, on September 10, 1915, they again attempted to redeem from delinquent tax sale by paying the then accrued taxes, penalties, and costs, and they also paid to the auditor and treasurer of Madera County “all interest then due and unpaid on said land.”

It appears from the petition that, on July 15, 1915, the surveyor-general advised petitioners that said land could be redeemed under section 3788 of the Political Code, but also advised petitioners of the act of 1915, S.

The act of 1915 provided: “Section 1. The unsold portions of the sixteenth and thirty-sixth sections of school lands . . . shall be sold at public auction by the surveyor-general. . . . Sec. 3. Those parts of all acts in conflict with this act are hereby repealed.” (Stats. 1915, p. 605.) Without question, section 3788 of the Political Code is in conflict with this act and is thereby repealed so far as it provided a different method for the disposition of school land.

We do not think petitioners had any vested right which was violated by the act of 1915. The absolute title to the land, as we have said, vested in the state by the tax deed, and the state could provide any method it chose for the subsequent disposition of the land, and could at any time change such method without impairing the right of any applicant to purchase who had not complied with the then existing law.

Petitioners claim that “the penalty provided by law for the nonpayment of interest is foreclosure, whereby the principal paid upon the purchase price becomes forfeited and the certificates canceled upon foreclosure and not otherwise.” And it is hence contended that as there has been no such foreclosure, petitioners were not required to pay accrued interest as a condition to the repurchase or redemption of the land, and that it was a violation of their contract to require such payment.

It was held in the recent case of Aikins v. Kingsbury, 170 Cal. 674 , [ 151 Pac. 145 ], that “the method of procedure by the act of 1867-68, for terminating the right of a defaulting purchaser of school lands purchased under that act was not exclusive, and he may not complain of a different method of procedure subsequently established by the state for accomplishing that end which did not impose upon him more bur

The writ is denied.

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 September 1, 1916.