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Reference is made to the notice of sale by the state contemplated by section 3897 of the Political Code, and it is said that these notices are void, as they do not contain the name of the delinquent owner. This, however, is a requirement of section 3764 of the Political Code, which provides for the notice of sale to be given by the tax collector where the property is to be sold to the state, and not by it. It has been held in Ellis v. Witmer, 131 Cal. 219, 66 Pac. 301, that a notice which fails to give the name of the delinquent owner is insufficient. Such requirement, however, is not found in section 3897 of the Political Cude. In this the only requirement is that the tax collector's notice shall contain the description of the property sold, a detailed statement of all delinquent taxes, penalties, costs, and expenses up to the date of sale, "and shall give the name of the person to whom the property was assessed for each year on which there may be delinquent taxes against said property, or any part thereof." The notices here in question seem to be deficient in this respect. It is made to appear that the properties were sold for delinquent taxes, penalties, costs, and charges for the years 1887, 1888, 1889, 1890, 1891, 1892, 1893, 1894, and 1895. The name of the person or persons to whom the property was assessed during these years is not given. But, upon the other hand, since the owner had received due notice by publication of the fact that his taxes were delinquent and the property had been sold to the state for such delinquency, it was not necessary to the validity of the proceedings that any notice of the intended sale by the state should be giren to him at all. Indeed, the state might have provided that such sales could be made in private. And under section 3787, by the issuance of the deed, the presumption of the regularity and sufficiency of this notice of sale became conclusive. See Bank of Lemoore v. Fulgham (Sac. No. 1,338) 90 Pac. 936.

The publication of the notice of sale required by section 3897 of the Political Code must be for three weeks. The publication as recited in the deeds was made in a paper designated “The Los Angeles Daily Journal." It is argued from this, without any proof, that the paper was in fact a daily journal, and that the notice should have been published as often as the paper was issued during the specified period. But the court will not presume, merely from the title of the paper, that it was published daily, and, moreover, a publication under this law once a week for the prescribed period is a good publication, even if it appear in a newspaper published daily. People v. Reclamation Dis., 121 Cal. 522, 50 Pac. 1068, 53 Pac. 108).

Section 3897 of the Political Code declares that “at the time set for such sale the tax collector must sell the property described in the Controller's authorization and said notices at public auction to the highest bidder

for cash in lawful money of the Uniteil States." Respondent argues from this, under the earlier system of taxation which prevailed in this state, and which elsewhere at present prevails, that it was the duty of the tax collector to have sold the property for the amount of the tax to the person who would pay the tax for the least quantity of land, and such is what is meant by the phrase “highest bidder" as now employed. If the law in fact contemplates that all the property must be sold, and the phrase "highest bidder" means him who will pay the largest cash sum for the property, it must result that the state will receive from its sales of such lands amounts far in excess of its accrued taxes, charges, and penalties. And (so runs respondents' argument) as there is no provision in our law for repayment to the original owner of this surplus, the law operates inequitably and unjustly in compelling such unfortunate delinquent owners to bear an excessive burden for the support of the government, and such a law violates the fundamental, equitable principle which is at the basis of all of our systems of taxation, namely, that, in the apportionment of taxes, due regard shall be had to making taxes uniform, and conipelling every person to bear only his proportionate share of them. It may at once be admitted that in the statutes of sister states, as well as of the United States, where the law requires the sale of all the property, there is cominonly found a provision whereby the excess over the demands of the state is made over to the owner. It also may be admitted that in our system of revenue collection a like provision might have been inserted. But such a provision is not found. The owner of the property who has permitted his taxes to become delinquent receives notice that, unless the taxes be paid by a given date, his land will be sold to the state. From the date of the sale, for the full period of five years, the owner has an absolute right of redemption from the state, and after that period of five years this right of redemption is still his until the state shall have actually sold the property. For two reasons it is to the benefit of the state that property so acquired should by it be resold into private ownership. The first, because it is inexpedient that the state should be charged with the burden of the care of many such parcels of property, its administrative machinery not being adapted to such end. In the second place, it is desirable always that the ownership of state lands, saving those which are necessary for its governmental functions, should be transferred to its citizens, whereby follow increasing population and the higher development, betterment, and improvement of the land, thus adding greatly to the wealth of the state. It must be concludeil, therefore, that, when the law speaks of the sale of “the property,” it means all of the land, and, when it says that the land shall be sold to the “highest bidder," it means him who will make the highest cash bid for all the property. It will not be questioned but that the state might have provided that the surplus moneys received by it from such sales should be paid over to the former owners of the properties sold. But the single question which is to be considered is that of the power of the state to decree such sales and retain the money. If there be no riolence done to the Constitution of this state or of the United States by a law whereby under the indicated circumstances the state re tains such excess moneys to its own use, no equitable considerations may move a court to declare void that which the Legislature has the power to decree. It is to be noted, then, in considering this, that the delinquent owner is given process of law in the notice of the sale to the state of which he is advertised by publication. It is to be noted, more over, that the liberal period of redemption of full five years is accorded him as an abso lute right. At the end of this five years the deed to the state is made, and the title of the state becomes absolute. We are unable to discover any constitutional objection which interposes and invalidates the state's title, and none has been pointed out. We are unable to see why the state may not obtain a title free from all equities in the former owner at the expiration of five years as may a private citizen after foreclosure upon the mortgage when the period of redemption following such foreclosure has passed. That in other states the laws provide for a payment to the owner of the surplus moneys after the state's exactions have been met we can regard only as an act of generosity upon the part of the state, and not as the performance by it of a constitutional duty to its citizens. For these reasons, we conclude that the law in this respect is constitutional.

The other propositions advanced by respondent are sufficiently answered by the cases of Fox v. Townsend, supra, Bank of Lemoore v. Fulgham (L. A. No. 1,338) 90 Pac. 936, and Baird v. Monroe (Cal.) 89 Pac. 352, and no particular mention of them is, therefore, necessary.

For the foregoing reasons, the judgment and order appealed from are reversed, and the cause remanded.

roll to indicate what was meant by the figures in the column designed to show the value of the property and the amount of the taxes. This being the case, the assessment was void and the sale and deeds made thereunder are likewise void. Hurlbutt v. Butenop, 27 Cal. 51; Braly v. Seaman, 30 Cal. 611; People v. S. F. Say. Union, 31 Cal. 132; People v. Hastings. 34 Cal. 571; Emeric v. Alvarado, 90 Cal. 414, 27 Pac. 356. This omission appearing in the assessment itself necessarily invalidates the proceedings. In this respect this case is to be distinguished from the case of Carter v. Osborn (L. A. 1,735, filed March 7, 1907), 89 Pac. 608, where the omission of the dollar mark or sign was in the delinquent list and not in the assessment. The decree as to lot 19, block 26, was therefore correct. The other lands whose titles are in controversy are lot 17, block 20, lot 17, block 24, and lot 11, block 5. The assessments of these lots were in all vital respects the same as the assessment set forth and discussed in Baird v. Monroe (Cal.) 89 Pac. 352, saving only that, instead of being described as "in Pellissier Tr.,” they were described as "in Electric Railway Homestead Assn. Tr." As in Baird v. Monroe, a map of the Electric Railway Home stead Association, recorded in book 14, p. 17, of Miscellaneous Records of the County of Log Angeles, was introduced in evidence, which map showed the location of the lots in controversy. The assessments therefore in this respect are identical with that discussed in Baird v. Monroe, and aided by the map which was introduced in evidence, the descriptions contained in these assessments were "sufficient to identify" the land. McCullough v. Olds, 108 Cal. 529, 41 Pac. 420.

Certain propositions are urged against the validity of the deeds made by the tax collector to the state. Section 3776 of the Political Code provides for a certificate of sale, and declares what that certificate must contain. Section 3785 provides for a deed from the tax collector to the state when the time for redemption has expired, and sets forth what such deed must contain; the recitals being identical with those called for in the certificate of sale. Section 3786 declares “that the matters recited in the certificate of sale must be recited in the deed." By reason of legislative oversight, there was at the date of these sales no law providing for the issuance of certificates of sale. It is contended that, as there was no law for a certificate of sale, there could in these deeds be no compliance with the requirement of section 3786, to the effect that the deed must contain a recital of the matters contained in the certificate. To this, however, it must be answered that, when the law requiring a certificate was repealed, there fell with it the requirement that the deed must contain the matters recited in the certificate. Moreover, section 3785 requires in the deed a recital of all the matters and things which the certificate contains, and those matters were in fact fully set forth in the deed. The only imperfection that can be charged in this regard was an imperfection in stating the time when the right of redemption had expired. But this irregularity was cured by the contirmatory act of February 28, 1903, fully discussed in Buird v. Monroe.

Certain correction deeds were made by the tax collector to the state, and it is urged that these deeds were without authority and void. The general principles governing such correction deeds are well settled. When a tax deed does not conform in its recitals to the facts, the officer is authorized to execute a second and corrected deed, but he has no power to execute a second deed which shall misstate the facts respecting any proceedings prior to its execution. Such a deed would be void. The power and the duty of the proper officer is not exhausted by the execution of an irregular or imperfect tax

Douglass v. Nuzum, 16 Kan. 515; McCready v. Sexton, 29 lowa, 350, 4 Am. Rep.


(152 Cal. 51) NOTE.-The following opinion, per Henshaw, J., was reversed in part on rehearing (91 Pac. 1001):

Plaintiff sued to quiet 'title to certain lots of land, claiming title thereto under and by virtue of certain tax sales to the state of California ani deeds from the state of California to him. The court gave its decree against the claim of plaintiff, and he appeals from the order denying his motion for a new trial.

One of the lots in question was lot 19 in block 26. The assessment of this lot, upon which the tax sale was based, shows that there was no dollar mark, or other mark, sign, word, Abbreviation oi explanation on the assessment

214; Woodman v. Clapp, 21 Wis. 350. Section session. Held, that an affidavit alleging that 3805b of the Political Code, dealing with the plaintiff had no physical possession of the premsubject of misstatement of facts or clerical er- ises, that his only possession was the construcrors occurring in the tax collector's deeds, de- tive possession accompanying the legal title, and clares that these may be corrected by the tax that such constructive possession had never been collector upon an order of the board of super- disturbed, did not show the actual possession revisors entered upon its minutes directing cor- quired, rection by the issuance of a new or amended 2. WORDS AND PHRASES-"CONSTRUCTIVE Postax deed. If, as respondent here contends, such SESSION.' an order of the board of supervisors was neces- "Constructive possession" is that which exsary and was not made, it was incumbent upon ists in contemplation of law without actual perhim to have shown it. As the record is here sonal occupation of the property. presented, the presumption will be that the

[Ed. Note.-For other definitions, see Words deeds were executed by the officer under proper

and Phrases, vol. 2, pp. 147+1473.1 direction and authority. Moreover, these correction deeds seemed to have been made for 3. SAME-"ACTUAL POSSESSION." the sole purpose of making a more certain state- To constitute actual possession of land, ment of the time when the right of redemption there must be such an appropriation of the land had expired, and for the reasons above given by the claimant as will convey to the community the original deeds themselves were sufficient where it is situated visible notice that the land upon this point. Nor do we perceive any force

is in his exclusive use and enjoyment, an apin the objection that the correction deeds to the propriation manifested by either inclosing, culstate were made after the state had parted tivating, improving, or adapting it to such uses with the title. No reason is discernible why as it is capable of. the state, like a private individual, may not ob- 4. STATUTES-SPECIAL LEGISLATION-RECORDS tain a proper correction deed for the betterment – LOSS OF RECORDS — ESTABLISHMENT OF of the title to property which it has conveyed, TITLE. and, if this be done after conveyance, why, as St. Ex. Sess. 1906, p. 78, c. 59 (the Mcin the case of an individual, it should not serve Enerney act), creating a system of procedure to perfect the title granted.

for establishing title to real property where the The deed contained a description of the prop- public records thereof have been destroyed, and erty as “situate, lying and being in the county providing that an action may be brought by any of Los Angeles, state of California, and describ- person claiming an estate in real property who ed thus: Mortgage interest in the following by himself or his tenant is in the actual possesdescribed property, Electric Ry. Homestead As- sion thereof, is not unconstitutional as special sociation Tract, lot 17, block 24." It is con- legislation, in that it divides property owners tended that the deed here purports to convey into two classes, one having actual and the only a mortgage interest in the lot, without any other only constructive possession of their propexplanation, and that the deed is therefore void.

erty, without any constitutional basis for the But article 13, $ 4, declares that "a mortgage for distinction, the purposes of assessment and taxation shall be deemed and treated as an interest in the

In Bank. Application by John N. Lofstad property affected thereby.” The further recitals for writ of mandamus against Hon. F. J. in the tax deed make this case parallel with that of Doland v. Mooney, 72 Cal. 34, 13 Pac.. Murasky, as judge of the superior court. Pe71. where such a deed was held to be sufficient.

tition denied. This property was sold for taxes for the year Edward C. Harrison, for petitioner. Page, 1894. It is objected that, upon the assessment book for 1895, there was not stamped an entry

McCutchen & Knight, for respondent. of the fact that said lot had been sold for taxes, and the date of such sale," as required LORIGAN, J. This is an application for a by section 3801 of the Political Code as it read in 1905. Only the words, "sold to the state,"

writ of mandate. The petitioner commenced were so stamped. But it is the assessment and an action, under the provisions of what is sale for taxes for 1894 which are involved in familiarly known as the "McEnerney act" this case, and a clerical misprision of the year

(St. Ex. Sess. 1906, p. 78, c. 59), to esafter cannot affect the validity of such proceeding. Moreover, if the purpose of the require

tablish and quiet his title to certain lots in ment is to give notice to the fiscal officers, cer- the city and county of San Francisco, being tainly a notice, "Sold to the state,” is suflicient

part of outside land blocks Nos. 270, 299, and to put them on inquiry, and the same is true if

701. This act, which creates a system of it be said that the requirement was designed to give notice of the sale to the owner.

judicial procedure for the establishing of For the foregoing reasons, the order refusing title to real property where the public records to grant a new trial was proper as to lot 19,

which would otherwise establish it have been block 26, and the judgment stands affirmed as to this lot. The order is reversed as to lot 17,

destroyed, provides that an action may be block 20, lot 17, block 24, and lot 11, block 5. brought under it by any person who claims

an estate in real property, and "who by him

self or his tenant, or any other person hold(152 Cal. 64)

ing under him, is in the actual and peace. LOFSTAD V. MURASKY, Judge. (S. F.

able possession thereof," and requires that 4,776.)

the complaint filed shall be accompanied by (Supreme Court of California. Sept. 20, 1907.) an affidavit which shall show the character 1. RECORDS — Loss of RECORDS — ESTABLISII- of the estate which the plaintiff claims in, MENT OF TITLE.

and the possession he has of, the real propSt. Ex. Sess. 1906, p. 78, c. 59 (the Mc- erty described in the complaint. The afliEnerney act), creating a system of procedure for establishing title to real property where the

davit filed by the petitioner with his compublic records thereof have been destroyed, pro

plaint stated that he was the owner in fee vides that an action may be brought by any per- simple of the said property, having derived son claiming an estate in real property who by

title thereto under sundry conveyances to himself or his tenant is in the actual possession thereof, and requires an affidavit showing the

him made in 1897 and 1898, and duly recharacter of the estate claimed and of the pos- Cod in the recorder's office of the city and county of San Francisco, and, as to the char- possesses, and the ordinary meaning of which acter of his possession of said property, de- the Legislature is supposed to have underclared that "there is no physical possession stood when it employed it in the act. It of said premises by said petitioner for the must be assumed that when the Legislature reason that the plaintiff has not been able to required, as a prerequisite to the right to inoccupy the same personally, or to find any voke the remedy which it provided, that person to whom he can lease the same, and the party should be in the actual possession the same are uninclosed and vacant; that of real property, it understood the distincthe only possession thereof is therefore the tion between the legal classes of actual and constructive possession which accompanies constructive possession, and that it used the the legal title in it; that this constructive term "actual possession" advisedly and as possession of plaintiff has never been disturb- generally understood. When the petitioner ed by any claim or any occupation, intrusion, stated in his affidavit that he was not in the or trespass of any other person, and said physical possession of the property himself plaintiff therefore alleges the same to be both or by any one else, and that it was uninactual and peaceable within the meaning of closed and vacant, he showed that he was the 'act to provide for the establishment and not in the actual possession under any defquieting of title to real property in case of inition of what constitutes actual possession, loss or destruction of public records,' ap- and stated himself out of court, unless, as he proved June 16, 1906." Upon the filing of his claims, the further facts stated by him complaint and affidavit, the petitioner ap- amounted to a showing of actual possession. plied to the respondent, as judge of the su- But that they do not we think it quite apparperior court in which the action was pend- ent. These facts relied on consist of the coning, for an order, required by section 4 of veyances by which he acquired the property, the act, designating the newspaper in which that he is the owner in fee simple, and that publication of summons in the suit should be no person makes any claim to it beside himmade. The respondent refused to make the self, nor is any one in adverse occupancy of order, and petitioner now applies to this it. Treating the affidavit as proof of these court for a writ of mandate requiring him to facts which it states, and for the purpose of do so.

obtaining the order required under the act it The refusal of the respondent to make the must be so treated, it only shows legal title order in question was based upon the ground to the property in petitioner, from which it that the character of the possession of peti- follows as a fiction of law that he is contioner of said property, as stated in his affi-structively in possession of it. The further davit, was not such as to give the superior fact stated by him that there is no adverse court jurisdiction to proceed in the action or claim or adverse occupancy of the property to grant the relief provided for in the act; | by any one does not affect this constructive that the court could only acquire jurisdic- | possession one way or the other. The mere tion to proceed when the affidavit showed fact that there is no adverse possession of that the party bringing the action was in the the premises to which one holds the legal actual possession of the property, title to title does not make the possession of such which was sought to be established by him, holder anything more than a constructive and that the affidavit of petitioner showed

It only tends to show that there is no that he was not in such actual possession, actual possession of it by any one, and hence and, at most, was only in constructive pos- his constructive possession is undisturbed. session of the property. We do not think For the purpose of this proceeding, it does there can be any doubt but that the action of not have the effect of changing petitioner's the respondent in refusing to make the order constructive possession into actual posseswas correct.

sion within the intent of the act under any The position of the petitioner seems to be, possible theory. All the possession he has, as stated in his affidavit, that because it ap- even if there be no adverse possession, is conpears therefrom that he has the legal title to structive possession, the possession which in the property, and hence in contemplation of contemplation of law followed his legal title law is in constructive possession of it, and as to the property, while what the act required there is no adverse claim to the property or

him to have, in order to avail himself of its any adverse occupancy thereof, he is, there- provisions, is actual possession--possession in fore, to be deemed in the actual possession of fact. it within the intent and meaning of the Mc- While it is true that the act in question Enerney act. This process of reasoning. is of a remedial nature and should be liberwhile possibly warranted by the exigency of ally construed so as to effect the purpose the situation confronting petitioner when en- contemplated by it, a court is not warranted deavoring to avail himself of the benefit of under the guise of liberal construction in givthe act, is obnoxious to the objection that it ing to a term or phrase a different meaning obliterates the well-recognized distinction be- than such as it is generally understood to tween actual and constructive possession, possess. “Actual possession” is a term of while at the same time it attempts to force well-understood legal meaning, and is used upon a phrase well recognized in law a mean- in opposition to the other term “constructive ing entirely different from what it usually | possession” or “possession in law.” The dis

91 P.-64

tinction between these classes of possession stitute such possession, there must be an apis so well defined and so generally recognized propriation of the land by the claimant such that it is hardly necessary to proceed to any as will convey to the community where it is great extent in pointing it out. In a general situated visible Lotice that the land is in way, it may be said that constructive pos- his exclusive use and enjoyment and approsession is that which exists in contempla- priation nianifested by either inclosing it, or tion of law without actual personal occupan- cultivating it, or improving it, or adapting it cy of the property, such a possession as in to such uses as it is capable of. This rule ancontemplation of law proceeds from the vest- nounced in the authorities cited, which is the ing of the paramount title or follows in the

general rule in respect to what constitutes acwake of the legal title, or, as more exactly

tual possession, is embodied in our Code defined, "constructive possession, or posses

(Code Civ. Proc. $$ 322, 323) as the one which sion in law as it is sometimes called, is that

shall prevail when accompanied by payment possession which the law annexes to the legal

of taxes (Code Civ. Proc. $ 325), in order to title or ownership of property when there is

sustain title by adverse possession when such a right to the immediate actual possession

title is founded upon a written instrument, of such property, but no actual possession."

and we see no reason why it should not be 28 Am. & Eng. Ency. of Law (20 Ed.) 239.

applicable as defining the actual possession This is the possession, and the only posses

required to be had in order to invoke the sion, which it appears from the affidavit of

benefit of the McEnerney act. petitioner he had of the land described in his complaint, constructive possession which the

It is insisted by the petitioner that the ac

tual possession required by that act is not to law connects with his ownership of the legal

be construed as strictly as it is in the authorititle. Opposed to this constructive possession is actual possession, the character of

ties defining the phrase for the purpose of

constituting adverse possession under the the possession which the act requires in or

statute of limitations referred to, as the reader that its provisions may be availed of. What constitutes such possession was early

sons and objects of the two statutes are difdefined by this court, and some of the cases

ferent. But the rule as to what constitutes doing so are found quoted from in Brumagim actual possession when title by adverse posv. Bradshaw, 39 Cal. 21-14. It is there said:

session is asserted under the statute is no dif"In Coryell v. Cain, 16 Cal. 373, which is a

ferent from the general rule which obtained leading case in this state on that point, we

before the statutory enactment, so that the define actual possession to be a subjection

statute lays down really no stringent rule to the will and dominion of the claimant,

upon the subject. It simply embodies the and it is usually evidenced by occupation,

general rule. Nor do we discover any purby a substantial inclosure, by cultivation, or

pose disclosed by the term as used in the Mcby appropriate use, according to the partic

Enerney act which would justify us in makular locality and quality of the property.' In

ing the distinction suggested, or any reason Plume v. Seward, 4 Cal. 36), 60 Am. Dec. J99,

why we should define actual possession as it is said that, to maintain an action on the

used in that act to mean something different ground of prior possession, 'there must be

from actual possession when asserted to supan actual bona fide occupation, a possessio

port a claim of title by adverse possession. pedis, a subjection to the will and control,

What constitutes actual possession in respect as contradistinguished from the mere asser- to such claim, or whenever the meaning of tion of title and the exercise of casual acts

the term has been in question, has been of ownership, such as recording deeds, paying sharply and clearly defined by the authorities taxes,' etc. In Wolf v. Baldwin, 19 Cal. 313. in this state, and, as we say, is really the in stating what kind of 'actual occupation' general rule on the subject, and, in the abwas required under the Van Yess Ordinance, sence of any disclosed intention on the part the court says it was a possession which is of the Legislature to give it a different meanaccompanied with the real and effectual en- ing than its general one, we cannot assume joyment of the property. It is the possession

that it so intended. We are referred to no Which follows the subjection of the property

authorities in this state where, when the to the will and dominion of the claimant to meaning of the term “actual possession" was the exclusion of others; and this possession under consideration, any different meaning must be evidenced by occupation, or cultiva- was given to it than the authorities cited by tion, or other appropriate use, according to us disclose. It may be said, too, in passing, the locality and character of the particular as accentuating the proposition that when the premises. * * It must, in other words, Legislature used the term “actual possession" be an open, unequivocal, actual possession- it employed it as generally detined and to renotorious, apparent, uninterrupted, and ex- quire possession in fact, that it declares in clusive-carrying with it marks and eviden- the act that such possession shall be by the ces of ownership, which apply in ordinary party or his tenant or other person. Possescases to the possession of real property.'” sion by tenant or other person could have no

We do not think it necessary to further relevancy except as applied to actual posrefer to the authorities detining actual posses- session. Aside from this, we do not discover sion. They are agreed that, in order to con- anything in the aflidavit of petitioner which

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