Commercial National Bank v. Schlitz

Action to quiet title. Findings and judgment were in favor of defendant. Plaintiff moved for a new trial, which was granted, and defendant appeals from the order.

Defendant urges that there was. no proper hill of exceptions before the trial court on which to base a motion for a

Plaintiff and defendant claim through a common source of title, plaintiff by deed from Lola E. Hill and Oscar B. Hill, dated July 8, 1893, duly recorded August 15, 1893, and defendant by tax deed of the collector of the Kern and Tulare Irrigation District, dated March 1, 1898. The premises described in plaintiff’s complaint and deed is a tract of land described by metes and bounds, being a part of the northwest quarter of section 7, township 24 south, range 26 east, Mount

It appears from the assessment-rolls introduced by plaintiff that the tract was assessed to plaintiff for the years 1897 to 1904, inclusive. The acreage and description varied in different years (omitting here all of the part of section described), sometimes by metes and bounds, as in plaintiff’s deed (1897, 1898, 1899, 1903, each assessment 153 acres, except *1903 for 149 acres); again, northwest quarter (1900) ; south 110 acres of northwest quarter (1901, 1902); and fractional south 149 acres of northwest quarter (1904). Payment in full of taxes for these assessments was shown. Defendant introduced assessment-rolls showing assessments to defendant (omitting all after part of section described) as follows: 1898, north 50 acres of northwest quarter (marked in red ink as follows, to wit): “Assessed also to Commercial National Bank of Ogden, Utah, Vol. 3, Page 2.” (Marked also in lead pencil on margin of book) : “Double assessed Page 2, Vol. 3, T. C., Take Or.” 1899, same description and same note in red ink; 1900, fractional northwest quarter ... 50 acres; 1901, fractional northwest quarter (being north 50 acres); 1902, north 50 acres, fractional northwest quarter; 1903, north 50 acres of fractional northwest quarter; 1904, north 50 acres of fractional northwest quarter. Defendant introduced receipts showing payments in full of assessments to him.

There is but little evidence outside of these official records. It appeared from the testimony of defendant and his son, and is uncontradicted, that defendant went into possession, as found by the court, July 20, 1898. Defendant testified: “I measured the land off myself so as to inclose what I thought was 50 acres and fenced it in. I measured fifty acres off of the north side of the land mentioned in plaintiff’s complaint. I found the stakes at the corner of the land, placed there by the surveyors. I made my measurements according to each stake.” He also testified that he has cultivated or pastured

Some letters were introduced by plaintiff, without objection, from which it appeared that on January 23, 1898, defendant wrote plaintiff that he had purchased 50 acres of the northwest quarter at delinquent tax sale, but did not want the land and would deed it to plaintiff for what it cost defendant. Plaintiff replied that defendant’s letter was the first intimation it had of any such irrigation district as defendant mem tioned; that plaintiff’s title had been a matter of record since 1893. July 2, 1898, defendant replied, stating further facts about the district; that the last assessment prior to 1896 was in 1892, to Mrs. Lola Hill or Oscar Hill, and was

Briefly summarized, the court found that the land described in plaintiff’s complaint was, in the year 1896, “duly and properly assessed by the assessor of said district pursuant to and as required by law ... to Lola E. Hill”; that all the property of the district was duly equalized in that year, and that to pay the outstanding indebtedness of said district its board of directors duly levied an assessment upon all the lands therein, including the said lands described in plaintiff’s complaint; that said assessment on plaintiff’s said land became a lien thereon and was never paid; that on February 27, 1897, said property was duly offered for sale to pay said assessment, and defendant became the purchaser of the “north fifty acres of the tract of land described” in plaintiff’s complaint; that said collector of said district executed and de

The reason for granting the motion for a new trial is not given, but if any sufficient reason can be found the order must be affirmed. If, however, the proceedings leading up to defendant’s tax deed were legal, and a valid title passed to defendant thereunder, it is immaterial whether the findings as to defendant’s adverse possession are supported by the evidence. Likewise, if title by prescription is established, the findings as to the tax title may be disregarded. It becomes necessary, therefore, to examine both sources of title upon which defendant relies.

Respondent attacks the findings on the following grounds: First, that the assessment in 1896 was made under the disorganizing act of 1893 (Stats. 1893, p. 523) and not under the act of March 7, 1887 (Stats. 1887, p. 254), and was therefore void because unauthorized by the act of 1893; second, that the title to the land in 1896 when assessed to Lola E. Hill stood of record in plaintiff and could not legally be assessed to any person other than plaintiff; third, that the attempted description of the land claimed by defendant as bid in by him and subsequently assessed to him does not definitely describe any land; fourth, that the whole of the

THE TAX TITLE CONSIDERED.

We do not think that the facts warrant the assumption that the assessment was made under the act of 1893. It was doubtless made in anticipation of disorganizing the district, but not as a part of or through proceedings for that purpose. The collector’s deed recites that the levy was made for the year 1896 by virtue and under the provisions of the act of March 7, 1887, and its amendatory acts. The letter of defendant to plaintiff, relied upon by the latter as showing that the assessment was made under the act of 1893, does not purport to be more than an outline .narrative of certain proceedings, but does not show that the levy was under the act of 1893. The decree of the court, dissolving the corporation, was not made until two years later, and could not then have been made except upon a showing in the complaint and by the evidence that the debts of the corporation were paid. The record is not before us, and we must presume regularity so far as disorganization is concerned.

By the act of 1897 (Stats. 1897, p. 254), the assessor was required to assess all real property in the district to the persons who own, claim, have the possession or control the property, and he must specify in the assessment-book: “ (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’).” Section 48 provides: That the matter recited in the certificate of sale must be recited in the deed and such deed duly acknowledged or proved is prima facie evidence that: “(a) The property was assessed as required by law; . . . (c) that the assessments were levied in accordance with law”; and “such deed ... is (except ias 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.” Like provisions are found in the act of 1887. Section 32 of the act of 1887

The land, as said in the Klumpke case, must be correctly described. The description must be definite, certain and intelligible of itself, and not such as to require evidence aliunde to render it certain. (Keane v. Cannovan, 21 Cal. 302 , [ 82 Am. Dec. 738 ]; People v. Mahoney, 55 Cal. 286 , [ 25 Pac. 442 ]; People v. Central Pacific Co., 83 Cal. 400 , [ 23 Pac. 303 ]; State v. Central Pacific R. R. Co., 21 Nev. 101 ; Central Pacific Co. v. Nevada, 162 U. S. 525 , [ 16 Sup. Ct. Rep. 885 ].) “A description sufficiently certain to convey land between man and man, and which, if contained in an agreement to convey, would authorize a court of equity to decree specific execution, will not answer in the proceeding to enforce the collection of a tax.” (Blackwell on Tax Titles, p. 124.) Defendant’s deed takes its origin in and must be governed by the description of the least quantity of the land

THE TITLE BY ADVERSE POSSESSION CONSIDERED.

The title by prescription turns principally upon the payment of the taxes by defendant. It was shown that plaintiff paid the taxes levied and assessed upon the fractional northwest quarter of section 7 for the years 1897 to 1904 inclusive; that defendant had the land claimed by him assessed for 1898 and thence each year to 1904 inclusive, and paid the taxes for each year except 1898.- But plaintiff paid the tax on all the land for 1903 on October 23, 1903, while defendant did not pay the tax on the tract separately assessed to him until November 23, 1903, and the tax for the year 1904 was paid by both parties on the same day, November 18,1904. Whether the adverse occupant of land may have it assessed to himself while it is assessed also to the true owner, and may comply with section 325, Code of Civil Procedure, by paying this double or second tax, when for the same years the true owner also pays the tax, is a question not satisfactorily or clearly

The order is affirmed.

Hart, J., and Burnett, J., concurred.