Palmer v. Boling

8 Cal. 384

• Court: California Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinions

On first hearing of this case, at the October Term, 1856, Murray, C. J., delivered the opinion of the Court—Heydenfeldt, J., and Terry, J., concurring.

This was a bill in equity, to restrain the defendant from selling certain lands in Mariposa county, for non-payment of taxes. The bill alleges two errors in the assessment; first—that the survey was made, and the patent issued to the grantor after the assessment; and, second—that the land is assessed as “ten square leagues,” and not by any specific boundaries.

In support of the first proposition, the case of Ballance v. Forsyth, 13 How. U. S. R., 24, is relied on. An examination of that authority, will show it has no application to the present case, because, by the act of Congress, admitting Illinois into the Union, it was specially provided, that lands sold by the United States, should not be liable to taxation until five years after the sale thereof, or after the issuing of the patent.

Without inquiring how far such an act would be constitutional, it may be generally stated, that no such act has been passed with reference to California, and that all "lands lying within this State,, owned or claimed by any person or corporation, whether patented or not,” are made liable to taxation by the statute of this State.

The second error is untenable. The statute requires, that the assessment shall contain a list of the real estate, “ giving the quantity of acres in each tract, as near as may be possible, except in case of city or town lots, which may be described by reference to numbers and streets.”

To require a particular description of rural lands, would be imposing an unnecessary burden on the officer.

Before closing this opinion, we would observe, inasmuch as a . question of remedy was made, that since the decision of Dewitt v. Hayes, 2 Cal., the Legislature have so amended the law as to make a tax-deed prima facie evidence of what it contains; so that it is not necessary, as it formerly was, to introduce evidence of the regularity of the assessment, and all the proceedings under it, and we are. of opinion that this has changed the rule in reference to the right of a party to invoke the aid of a Court of Chancery, in a case where his property is about to be illegally sold for taxes, for, as the deed is prima facie evidence of title, and the error is in the assessment, the defendant would be driven to extraneous facts to show its illegality. There being no error patent upon the face of the proceeding, the deed being the only evidence necessary, would operate a cloud upon the title.

In Gaar v. Robinson et ah, this point was not called to the attention of the Court, and the case went off on the decision of Dewitt v. Hayes.

Judgment affirmed.