Miller v. McKenna

147 P.2d 531, 23 Cal. 2d 774, 1944 Cal. LEXIS 200

• Court: California Supreme Court
• Decided: March 20, 1944
• Docket: L. A. 18157
• Status: Published

Opinions

SHENK, J.

The plaintiff sued to quiet title to 103 lots in the city of Los Angeles. His title is based on a sheriff’s deed executed in pursuance of a mortgage foreclosure judgment and sale. The defendants’ claims of title depend upon the validity of certain tax deeds. The plaintiff recovered judgment quieting his title to all but ten of the lots. He appealed from that portion of the judgment quieting in the defendants the title to those ten lots.

Nine of the ten lots involved on the appeal were sold to the state in 1912 for delinquent 1911 taxes. In 1917 they were sold by the state at public sale to the highest bidders. The tenth lot was sold to the state in 1918 for delinquent 1917 taxes, and in 1923 was sold by the state.

The plaintiff claimed through a mortgage executed in 1915 and a sheriff’s deed on foreclosure executed and recorded in 1937. The mortgage contained a waiver of the statute of limitations, and the validity of the mortgage and foreclosure was decreed in Dexter v. Pierson, 214 Cal. 247 [4 P.2d 932], and Busing v. Pierson, 1 Cal.2d 495 [36 P.2d 116].

By findings and judgment dated March 20, 1941, the trial court found and concluded that the publications of the 1911 and 1917 deliquent tax lists involving the ten lots were not in accordance with the statute and that the tax sales and tax deeds issued pursuant thereto were invalid. The court held that the notices of sale in 1911 and 1917 were fatally defective and therefore invalid for the reason that they omitted the word “penalties” in stating the amount due. In so holding the court was fortified by many cases in this court and the District Courts of Appeal directly in point. The ease which may be deemed the leading case on the subject is Bussenius v. Warden, 71 Cal.App. 717 [236 P. 371] (1925), wherein it was held that a sale pursuant to a notice which, as here, omitted the word “penalties” in stating the amount due, was void. The same notice there and here involved was held to be void in Snodgrass v. Errengy, 86 Cal.App. 664 [261 P. 497] (1927). In Wyser v. Truitt, 95 Cal.App. 727 [273 P. 147] (1928), a similar notice was held insufficient to support a tax deed. The holding in Bussenius v. Warden was approved by this court in January 1929, in Knoke v. Knight, 206 Cal. 225 [273 P. 786]. Again in Gramson v. Geniella, 209 Cal. 610 [289 P. 817] (1930), this court approved the holding. To the same effect are Redman v. Newell, 114 Cal.App. 215 [299 P. 746] (1931); Myran v. Smith, 117 Cal.App. 355 [4 P.2d 219] (1931); Rexon v. Gaffey, 119 Cal.App. 389 [6 P.2d 534] (1931); Langstaff v. Mitchell, 119 Cal.App. 407 [6 P.2d 546] (1931); Ayars v. Faust, 131 Cal.App. 154 [20 ] (1933); Trazera v. McDonell, 131 Cal.App. 473 [21 P.2d 706] (1933), and Jones v. Walker, 47 Cal.App.2d 566 [118 P.2d 299] (1941).

In Bray v. Jones, 20 Cal.2d 858 [129 P.2d 364] (1942), this court again recognized the correctness of the prior holdings by saying at page 862 .■ ‘ ‘ The failure to set forth the amount due for penalties, emphasized by the statements in the notices that penalties were not included, was plainly in violation of the statute as it then read. ’ ’

Thus prior to the entry of judgment herein in 1941 the subject had been exhausted by the numerous holdings that the notices of sale here involved were invalid and that any tax deed issued thereunder was necessarily void. However the trial court further found and concluded that a ratifying statute adopted in 1929 was intended to and had the effect of curing the defects in those instruments. The original briefs on appeal (filed before the enactment of another curative act in 1943, which will be discussed later in this opinion) were devoted principally to the effect of the ratifying statute of 1929, the enactment of which appears to have been occasioned by the decision of this court in Gottstein v. Kelly, 206 Cal. 742 [276 P. 347].

At the time of the publication of the 1911 and 1917 delinquent tax lists and until 1929, section 3764 of the Political Code provided that the tax collector should “publish the delinquent [tax] list, which must contain the names of the persons .and a description of the property delinquent, and the amount of taxes, penalties and costs due” opposite each name and description. In March 1929 this court decided the Gottstein case. In that case certain tax deeds were held void because the published delinquent tax list stated one amount opposite descriptions of several parcels of property in one ownership (to designate the total of taxes, penalties and costs on all of such parcels), instead of stating, as required by said section 3764, the amount of taxes, penalties and costs opposite the description of each parcel. It was also held that the notice of sale was not in accordance with the statute and was defective in that it did not state the amounts due for “taxes, penalties, and costs” as required by the statute, citing Bussenius v. Warden, supra.

Following the decision in the Gottstein case, the Legislature amended section 3764 of the Political Code, effective on the 23rd of the following May, to provide that the published delinquent list should contain, among other requirements, “an amount equal to the total amount of all taxes, assessments, penalties, and costs due.” By a separate section of the act the Legislature declared that the amendment was “not a change in, but a statement and declaratory of the law as the Legislature intended it to be by the terms” of said section 3764 prior to amendment. It was further declared that all publications of delinquent lists “failing to enter taxes, penalties and costs as separate entries but entering the foregoing amounts in one total sum and all sales, certificates of sale, tax deeds or other tax conveyances based upon such entries on any assessment roll or delinquent list are hereby confirmed, validated and legalized, and the same shall be construed and operate at all times and upon all occasions in law in the same manner as if such entries were separately set forth ...” Following the declaration of the immediate effect of the act was a statement of the facts constituting the necessity therefor, as follows: “Due to the recent decision of the supreme court of the State of California in the case of Gottstein v. Kelly,” the “possible construction” to be placed upon the pertinent requirements would be that taxes, penalties, and costs should be separately shown on the publication of delinquent lists and notices of sale; that “inasmuch as the tax collectors of the state have completed preparatory work on the publication of the delinquent list which must be published on or before June 8, 1929, and great expense would be involved in the publication of the delinquent list to state as separate items the amount of taxes, penalties and costs due on property subject to tax sales and the possibility of error would be greatly increased, many tax titles acquired at tax sales would be jeopardized.”

A casual reading of the opinion in the Gottstein case might afford some justification for the apprehension of the Legislature, but a more careful study of it reveals that in no sense was it intended to be, nor could it properly be, an adjudication that a separate amount for each of the items of taxes, penalties and costs must be stated in the notice of sale. That question was not involved in the ease. Its solution, as apprehended by the Legislature to be a “possible construction” of the statute by this court, would have been obiter and would have been unsupported by any.decision in this state. It is conclusively shown by the language used in the 1929 act amending section 3764, that the Legislature did not intend to change the law so as to conform to the apprehended “possible construction,” but merely to declare, out of an abundance of caution, that the amendment did not work a change in the pre-existing law but was a continuation thereof. With this declaration we cannot be at odds for no ease has been found in this state, either before or since the amendment of 1929, which held that a separate statement of the amount of each of the items of taxes, penalties and costs was essential to a valid notice of sale.

The curative provisions of the 1929 act appear to have been concerned only with the publication of delinquent lists or notices of sale which failed “to enter taxes, penalties and costs as separate entries but entering the foregoing amounts in one total sum,” and with notices of sales and tax deeds based upon such entries. It may not be assumed that the Legislature thereby intended or attempted to validate tax deeds which were void for reasons not contemplated by the terms of the act. The 1929 enactment therefore had no effect upon the tax deeds here in question.

Pending this appeal and after the argument in the case the Legislature in 1943 adopted another curative act which it is claimed is much broader than the act of 1929 and has the effect of resuscitating the void tax deeds here involved and thus confirming title in the tax deed holders. The submission of the cause on appeal was set aside in order that the attorney general might file a brief as amicus curiae in support of the effectiveness of the 1943 act as a cure of the defects in the tax proceedings here under review. The recent enactment is chapter 458 of the Statutes of 1943. (Stats. 1943, p. 1993.) It became effective on August 4th and provides:

“Section 1. Every act and proceeding heretofore taken by any county, city and county or the officers thereof relative to the preparation, transmitting, computing, determining or fixing the budget or the tax rate or rates of any county or city and county, or to the assessment or equalization of property or to the levy of taxes thereon or to tax sales or certificates of tax sales, tax deeds or other conveyances resulting from such assessment, equalization and levy, are hereby confirmed, validated and declared legally effective.

“See. 2 (a) This act is limited to the correction of defects, irregularities and ministerial errors which the Legislature originally could have omitted from the statutory requirements of law under which the acts hereby confirmed, validated and declared legally effective were taken.

“ (b) This act is limited to the validation of acts and proceedings to the extent to which the same can be effectuated under the State and Federal Constitutions.

“Sec. 3. If any provision of this act or its application to any person or circumstances is held invalid, the remainder of the act and the application of its provisions to other persons or circumstances is not affected."

The question then to be determined is whether the act of 1943 may be deemed to cure the defects in the prior invalid tax sales and thereby to validate a void tax deed executed pursuant thereto, under the facts here disclosed.

No doubt may be entertained of the general power of the Legislature to enact statutes to validate prior tax proceedings. Many cases recognize that power. (Moore v. Patch, 12 Cal. 265; Cowell v. Doub, 12 Cal. 273; People v. Holladay, 25 Cal. 300; Wetherbee v. Dunn, 32 Cal. 106, 108; People v. McCreery, 34 Cal. 432; People v. Goldtree, 44 Cal. 323; Rollins v. Wright, 93 Cal. 395 [29 P. 58]; Haaren v. High, 97 Cal. 445 [32 P. 518]; Ramish v. Hartwell, 126 Cal. 443 [58 P. 920]; Chase v. Trout, 146 Cal. 350 [80 P. 81]; Baird v. Monroe, 150 Cal. 560 [89 P. 352]; Carter v. Osborn, 150 Cal. 620 [89 P. 608]; Peck v. Fox, 154 Cal. 744 [99 P. 189]; Imperial Land Co. v. Imperial Irrigation Dist., 173 Cal. 660 [161 P. 113]; Schamblin v. Means, 6 Cal.App. 261 [91 P. 1020]; City of Santa Monica v. Los Angeles County, 15 Cal. App. 710 [115 P. 945]; Stuart v. Chapman, 87 Cal.App. 552, 553. [262 P. 348].) And a proper validating act may be effective as to pending litigation. (Cooley, Const. Limitations, 8th ed., p. 787; United States v. Heinszen & Co., 206 U.S. 370, 387 [27 S.Ct. 742, 51 L.Ed. 1098]; see, also, Tulare Irr. Dist. v. Superior Court, 197 Cal. 649 [242 P. 725]; Clark v. City of Los Angeles, 160 Cal. 30, 43 [116 P. 722].) The fact that the proceeding was fatally defective is not alone an insurmountable obstacle to the exercise of the curative power; for, as said in People v. Holladay, supra, at page 305, if it was not fatally defective it would stand in no need of the healing power. But there are certain limitations on the exercise of that power. Included therein are the inhibitions of the federal and state Constitutions. The permissible exercise of the power and the limitations thereon are set forth generally in Chase v. Trout, 146 Cal. 350 [80 P. 81], and similar cases, and may be summarized as follows:

The Legislature may cure irregularities or omissions to comply with provisions of a statute which could have been omitted in the first instance. This rule is quoted from Cooley on Constitutional Limitations, at page 457, as follows: “If the thing wanted or failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the manner or mode of doing some act, and which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.” (Gordon v. City of San Diego, 101 Cal. 522, 528 [36 P. 18, 40 Am.St.Rep. 73] ; Cooley’s Constitutional Limitations, 8th ed., pp. 775-776.) But the Legislature cannot cure defects which are sometimes termed jurisdictional. Among the jurisdictional requisites are (a) a duly constituted taxing authority; (b) property to be taxed within the territorial jurisdiction of the taxing body; (c) property or subject matter legally subject to the tax; and (d) sufficient notice and opportunity for hearing to constitute compliance with due process. (See Graham & Foster v. Goodcell, 282 U.S. 409 [51 S.Ct. 186, 75 L.Ed. 415]; Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297 [57 S.Ct. 478, 81 L.Ed. 659]; People v. Goldtree, 44 Cal. 323; People v. Lynch, 51 Cal. 15 [21 Am.Rep. 677]; Harper v. Rowe, 53 Cal. 233; Baird v. Monroe, 150 Cal. 560 [89 P. 352]; People v. Van Nuys Lighting Dist., 173 Cal. 792 [162 P. 97, Ann.Cas. 1918 D 255]; Fall River Valley Irrigation Dist. v. Mt. Shasta Power Corp., 202 Cal. 56 [259 P. 444, 56 A.L.R. 264]; Golden Gate Bridge etc. Dist. v. Felt, 214 Cal. 308, 323 [5 P.2d 585]; Texas Co. v. Bank of America etc. Assn., 5 Cal.2d 35, 43 [53 P.2d 127]; Hall v. Fairchild-Gilmore-Wilton Co., 66 Cal.App. 615 [227 P. 649]; 6 R.C.L. 321; 24 Cal.Jur. 30 et seq.) While the Legislature cannot cure the omission of jurisdictional requisites, the manner of procedure, after jurisdiction is acquired and the mandates of due process are complied with, are matters within the legislative discretion and may be subjected to the exercise of the healing power so long as further constitutional inhibitions are observed.

The Legislature may not enact curative legislation the effect of which would be to destroy or unlawfully infringe upon vested rights. In such cases laws confessedly retrospective have been declared ineffective when they were held to be in conflict with some right secured either by a constitutional guaranty or protected by the principles of universal justice. (Galland v. Lewis, 26 Cal. 46, 47, 49, citing Terrett v. Taylor, 9 Cranch (U.S.) 43 [3 L.Ed. 650]; City of Los Angeles v. Oliver, 102 Cal.App. 299, 310 [283 P. 298]; 5 Cal.Jur. 747.) As said in City of Los Angeles v. Oliver, supra, at page 310, citing 6 Rr.C.L. 308, and Campbell v. Holt, 115 U.S. 620 [6 S.Ct. 209, 29 L.Ed. 483], a vested right, as that term is used in relation to constitutional guaranties, implies an interest which it is proper for the state to recognize and protect, and of which the individual may not be deprived arbitrarily without injustice. The question of what constitutes such a right is confided to the courts. In Glide v. Superior Court, 147 Cal. 21, at page 30 [81 P. 225], it was said, through Mr. Chief Justice Beatty, concurring, that vested rights of property and contract rights are placed by the Constitution under the protection of the courts, where alone the questions of law and fact upon which they depend can be finally decided. That declaration was quoted with approval by this court in Inglin v. Hoppin, 156 Cal. 483, 488 [105 P. 582].

When the power of the court is invoked to protect the right, the inquiry may be “Whether, in the case presented, the effect of applying the statute is to deprive the party of his property without due process of law” (Chase v. Trout, supra, at p. 359). For example “the Legislature has no power to take the property of one person and give it to another.” (Gillan v. Hutchinson, 16 Cal. 153, 156.) The right of “acquiring, possessing and protecting property” is anchored in the first section of the first article of our Constitution. This right is as old as Magna Charta. It lies at the foundation of our constitutional government, and “is necessary to the existence of civil liberty and free institutions.” (Billings v. Hall, 7 Cal. 1, 6.)

As to the plaintiff’s property right in the present case it was stipulated that his common source of title was in Edward Russek. In 1915 the Piersons, husband and wife, purchased the property and executed to Russek a purchase money mortgage including therein the parcels involved in this action. The validity of the mortgage, the foreclosure of which is the basis of the plaintiff’s title, may not now be questioned. (Dexter v. Pierson, supra; Busing v. Pierson, supra.) The plaintiff is the successor in interest of the mortgagee. The mortgagee’s interest was therefore at first an equitable estate in the property. By the sheriff’s sale and deed the equitable estate was converted into a legal estate which became a property right vested in the plaintiff in 1937, prior to the passage of the curative act of 1943, and of which he may not be divested except in a manner provided by law.

In the enactment of the curative act of 1943 the Legislature was scrupulous in observing the constitutional limitations on the exercise of its power. Section 2(a) limits the operation of the act to the correction of “defects, irregularities and ministerial errors which the Legislature originally could have omitted. ’ ’ To this extent the curative provisions of the act, within the constitutional limitations, unquestionably would be effective. Then section 2(b) limits the act “to the validation of acts and proceedings to the extent to which the same can be effectuated under the State and Federal Constitutions. ’ ’ The attorney general recognizes the necessity of this limitation, for the first proposition advanced by him is that “The Legislature may cure all defects in the taxing process not violative of constitutional rights.” With this we agree. In section 3 the Legislature further recognizes that the act, in “its application to any person or circumstances” might be held invalid, and declares that notwithstanding that fact the act otherwise should be effective.

We are dealing here with a controversy between private parties concerning conflicting claims to the title to real property arising under separate conveyances of record, the plaintiff’s deed on foreclosure on the one hand, and the defendants’ tax deeds on the other. It has been demonstrated that the curative act of 1929 by its terms is inapplicable to this case; and to give the curative act of 1943 the effect claimed for it would be, “in its application to” the plaintiff under the “circumstances” of this case, to deprive him of his estate without due process of law and thus by a mere legislative rescript pronounce as valid a deed which was void when it was made (Harper v. Rowe, 53 Cal. 233, 237, 238), and thereby transfer the title of the plaintiff to the defendants. Indeed, it may be said that the application of that curative act in this case would be to sanction a purported judicial determination by the Legislature of conflicting rights in real property which that body may not constitutionally render. (Roche v. Waters, 72 Md. 264 [19 A. 535, 7 L.R.A. 533].)

We conclude that the property interest of the plaintiff is a vested right of which he was not divested by the general provisions of section 1 of the curative act of 1943; that such interest was not otherwise affected by the act as contemplated by section 2(b) thereof; and that this is one of the cases wherein the “application” of the act is ineffective as contemplated by section 3 thereof.

From the foregoing a reversal must follow. None of the parties has manifested any dissatisfaction with the finding of the trial court on the issues of adverse possession. The plaintiff was not aggrieved by the finding and the defendants were not aggrieved by the judgment. Therefore questions of the sufficiency of the evidence to support the findings on those issues, or the correctness of the findings and conclusions of the trial court thereon, are not determined.

Other questions discussed by the parties have been considered but a specific reference to them is unnecessary. The question of reimbursement if any to the tax deed purchasers is not involved on this appeal.

The portion of the judgment appealed from is reversed.

Curtis, J., Carter, J., and Schauer, J., concurred.