People v. Frisbie

31 Cal. 146

Opinion

By the Court, Shafter, J.:

This is an action for the recovery of delinquent taxes assessed upon real estate. The complaint is against both person and property. The answer alleges, by way of avoidance, that the lands described in the complaint are public lands of the United States. Judgment was entered for the people upon the pleadings, and the appeal is from the judgment.

There are two questions: One as to the sufficiency of the complaint, the other as to the sufficiency of the avoidance, in the event the complaint should turn out to be sufficient.

The lands are described in the complaint by metes and bounds, and the assessment is alleged to have been made upon “ Frisbie’s claim to and possession thereof, and upon the improvements upon such real estate.” The objection taken to the complaint is, that the assessment appears to have been put upon a mere claim to the possession of the land. This objection proceeds upon a mistake of fact—for, by the averment, the assessment was upon the “ claim and possession.” Had the assessment, however, been upon the claim alone, it would have sufficed. The provision of the Revenue Act of 1861 (Acts 1861, Sec. 5, p. 421,) is as follows: “ The term real estate, whenever used in this Act, shall be deemed and taken to mean and include, and it is hereby declared to mean and include, the ownership of or claim to, or possession of, or right of possession to any land,” etc.

The term “ claim,” as used in this provision, means something more than a mere assertion by the party assessed that he owns, or is entitled to possess the lands described in the list. While the word carries with it the idea of such assertion, it involves also the idea of an actual possession of the land claimed. We therefore consider not only that the assessment declared on was based upon a subject matter liable to taxation under the Act of 1861, but of a subject matter, also, comprehended by the term “ property,” as used in the- thirteenth section of the Eleventh Article of the Constitution.

The insufficiency of the answer as an avoidance of the case made in the complaint, is settled by People v. Shearer, 30 Cal. 645.

Judgment affirmed.

Mr. Chief Justice Cubbet did not express any opinion.