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District Court of Appeal, Fourth District, California.


Civ. 2692.

Decided: February 26, 1942

Raphael Dechter and Lyman P. Robertson, both of Los Angeles, for appellant. M. J. Rankin, Milo V. Olson, and R. Leslie Sparks, all of Los Angeles, Amici Curiae, for appellant. West & Vizzard and Edw. West, all of Bakersfield, for respondents.

Respondents obtained a judgment quieting title to certain real property in Kern County. Defendant Ida T. Jones appealed therefrom.

Respondents, as holders of a tax deed issued by the County Tax Collector of Kern County, brought this action to quiet title against the appellant as the owner in fee of the said property. Respondents rely upon a deed dated October 19, 1937, from the Tax Collector of Kern County. The State of California, as grantor of said deed, according to respondents, acquired title to that property by virtue of a conveyance to the state made on July 15, 1935, by the Tax Collector of Kern County on account of the nonpayment of taxes for the year 1929. In other words, the taxes not having been paid for the year 1929, the property was declared sold to the state on June 30, 1930, and five years having elapsed without any redemption, it was conveyed to the state. It is the contention of appellant that the proceedings leading up to the sale of the property to the state in the year 1930 for the nonpayment of taxes in 1929, and that the proceedings leading up to the issuance of the conveyance of the real estate to the state in 1935, and the proceedings leading up to the issuance of the deed to the respondents, were defective and void.

Under point one it is admitted by respondents in their closing brief that the notice of sale did not comply with section 3764 of the Political Code in that the notice recited that the property would be sold for the nonpayment of taxes instead of reciting that the property would be sold for the nonpayment of taxes, penalties and costs. The notice recites that “* * * unless the taxes delinquent as appear in said list, together with the penalties and costs, are paid on or before the sale date given below, the real estate upon which taxes are delinquent will be, by operation of law, sold to the state * * *.” (Italics ours.) In other words, the notice preceding the list specifically states that the list contains the amount of taxes due but makes no mention as to whether the list contains the amount of taxes, penalties and costs. The fact that the list makes no mention of containing the amount of penalties and costs is further strengthened by the statement in the notice that “unless the taxes delinquent as appear by said list, together with costs and penalties are paid, I, the said tax collector, etc., will sell said real estate, etc.” This would obviously seem to indicate from a reading of the notice that the list contained the taxes only, and that the owner of the property, in addition to the amount of taxes shown in the list, would be compelled to pay some other sum representing penalties and costs in order to retain his property and prevent such sale.

Respondents state that Gottstein v. Kelly, 206 Cal. 742, 276 P. 347, “is directly in point” but was not cited by either respondents or appellant before it was called to the attention of respondents by amici curiae herein, and they admit in this respect “that the proceedings prior to the sale of the lands by the State of California to the respondents were irregular, and that the title of respondents probably will fall unless sustained by the Statute of Limitations set up in subdivision 8, section 3897 of the Political Code, adopted in 1935, and in effect at the time the sale by the state to the respondents was made.” It should be here noted, however, notwithstanding the concession made by respondents, that the holding in Gottstein v. Kelly, supra, has been modified to some extent by legislative enactment. Stats. 1929, ch. 422, p. 742. Gottstein v. Kelly, supra, in effect held that under the provisions of sections 3747 and 3764 of the Political Code, taxes, penalties and costs should be separately shown on the publication of delinquent lists and notices of sale under sections 3771 and 3771a of the Political Code. The legislature, in 1929, amended these provisions (§ 3764, Pol. Code) by requiring that the delinquent list show only “an amount equal to the total amount of all taxes, assessments, penalties, and costs due,” and in passing the amendatory act, specifically declared that the amendments were “not a change in, but a statement and declaratory of the law as the Legislature intended it to be by the terms of those sections prior to” the amendment. Section 4 thereof further provided that “all publications of delinquent lists or notices of sale under sections 3771 and 3771a of the Political Code failing to enter taxes, penalties and costs as separate entries but entering the foregoing amounts in one total sum and all sales * * * tax deeds * * * based upon such entries * * * are hereby confirmed, validated and legalized * * *.” Clayton v. Schultz, 4 Cal.2d 425, 50 P.2d 446. The defect or deficiency appearing in the notice, as above conceded, is not only an irregularity, but has time and again been held to be such a defect that a subsequent tax deed predicated upon such defective notice is void. Bussenius v. Warden, 71 Cal.App. 717, 722, 236 P. 371; Snodgrass v. Errengy, 86 Cal.App. 664, 261 P. 497; Gottstein v. Kelly, supra. The giving of notice in the manner and form prescribed by the statute is an essential jurisdictional fact. Cordano v. Kelsey, 28 Cal.App. 9, 19, 151 P. 391, 398; Campbell v. Canty, 162 Cal. 382, 123 P. 266; Southern California B. & F. Corp. v. Mathes, 206 Cal. 749, 752, 276 P. 1013; Clayton v. Schultz, 22 Cal.App.2d 72, 74, 70 P.2d 512.

When a proceeding is void for one purpose it is void for all purposes. A void tax deed is like a void judgment which is but a “dead limb upon the judicial tree, which should be lopped off” at any time. Pettis v. Johnston, 78 Okl. 277, 190 P. 681, 689. In matters pertaining to tax sales, statutes prescribing the manner of service of notice and the issuance of tax deeds thereunder are mandatory and not directory. A deed is void to prevent the operation of the short statute of limitations when there is a fundamental or jurisdictional defect in the proceedings, either disclosed by the evidence of the deed or by the record of the proceedings. Lind v. Stubblefield, 138 Okl. 280, 282 P. 365.

In 26 Ruling Case Law, p. 443, § 399, the rule is thus declared: “A majority of the courts in which the question has arisen have taken the further position that a short statute of limitations applies only to sales invalid because of mere technical defects and irregularities in the proceedings, and that possession under such a statute will not sustain a deed that is valid on its face, if there were jurisdictional or fundamental defects in the sale which rendered the proceedings absolutely void * * *.” See, also, Harris v. Mason, 120 Tenn. 668, 115 S.W. 1146, 25 L.R.A.,N.S., 1011; Martin v. White et al., 53 Or. 319, 100 P. 290, citing Blackwell on Tax Titles, § 944; Groesbeck v. Seeley, 13 Mich. 329; Kypadel Coal & Lumber Co. v. Millard, 165 Ky. 432, 177 S.W. 270; Secret Valley Land Co. v. Perry, 187 Cal. 420, 202 P. 449; Cooley on Taxation, 4th Ed. vol. 4, pp. 2970, 2971, 2974.

Section 3897, subdivision 1 of the Political Code provides in part that “* * * whenever the State shall have become the owner of any property sold for taxes * * * the tax collector * * * shall * * * sell * * *.” If the tax deed to the state was void the state did not become the owner of the property sold for taxes. Where the proceedings are so fatally defective that no title passes, the legislature cannot, by a curative act, transfer the property of one person to another. The giving of the notice as required and in the manner prescribed by the legislature was a jurisdictional prerequisite to the making of a valid sale herein. The notice published was unauthorized and therefore constituted no notice. The only notice to the owner which could constitute due process and under which he could be deprived of his property was that set out in the law at the time the sale was made, and it is evident that such notice was not given. Warden v. Broome, 9 Cal.App. 172, 98 P. 252; Harper v. Rowe, 53 Cal. 233; 37 Cyc. 1379, 1380.

A careful reading of Clayton v. Schultz, supra, does not indicate an intention by the Supreme Court to announce a rule or establish a principle at variance with those herein expressed. The act of 1929 did not have the effect of validating the tax sale in this case, as the sale was absolutely void when it was made. The day after the sale, the title of the owner was as valid in law and in equity and to all intents and purposes, as though no sale had occurred. Harper v. Rowe, supra. The force of the legislature's declaration is all that purports to make valid a sale which theretofore was void. The deed pursuant to the sale conveyed no title to the state since plaintiffs offered only a void tax deed as a basis of their claim of title. Neither the doctrine of laches nor the statute of limitations could supply the lack of affirmative proof so as to entitle plaintiffs to judgment. Jones v. Walker, 47 Cal.App.2d 566, 118 P.2d 299.

Appellant sets forth several other claimed reasons why the tax sale was void. In view of the concession and determination that the first reason stated was tenable and rendered the sale irregular and consequently void, we see no reason to pass upon the sufficiency of other claimed reasons. Where tax proceedings have been shown to be defective, the purchaser must be reimbursed for all taxes, costs, penalties and expenses incurred. The purchaser may introduce evidence as to the amount of these items. Clayton v. Schultz, supra.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concurred.

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