TANNHAUSER v. ADAMS

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District Court of Appeal, Fourth District, California.

TANNHAUSER v. ADAMS.

Civ. 3644.

Decided: July 01, 1947

Solon S. Kipp and W. E. Starke, both of San Diego, for appellant. Stickney & Stickney, Edward Strop and Virgil S. Kipp, all of San Diego, for respondent.

Action to quiet title. Plaintiff and appellant brought this action on December 27, 1945, as the record owner of the property here involved, against defendant and respondent, the holder of a tax deed issued by the tax collector of San Diego County to the State of California, on July 1st, 1938, and recorded on August 5, 1938, and a tax deed from the State to defendant dated January 14, 1941, and recorded on January 20, 1941.

The land in controversy was sold to the State September 1st, 1938, for delinquent taxes for the year 1932.

There are two points in controversy. The first is whether plaintiff's action is barred by sections 3521, 3725 and 3726 of the Revenue and Taxation Code, and the second is whether the failure of the Tax Collector to mail a notice by registered mail to the party to whom the land was last assessed, at his last known post office address, as required by section 3771a of the Political Code, in force July 1st, 1938, the date of said sale, was cured by the validating acts of 1943 and 1945. Stats.1943, p. 1993, chap. 458; Stats.1945, p. 2176, Chap. 1134.

Defendant set up the bar of the statute of limitations in his answer and made timely objections to the introduction of any evidence by plaintiff attempting to attack the validity of the tax deeds to and from the State, or any of the proceedings leading up to their issuance, on the ground that this right had been closed to plaintiff by said sections and by the validating and curative acts. The trial court held in favor of defendant's contention and gave judgment accordingly.

Plaintiff's action was commenced over 6 1/212 years after the recording of the tax deed to the State and over 3 1/212 years after June 1st, 1941, the last limitation set forth in section 3521 of the Revenue and Taxation Code, which provides as follows:

‘A proceeding based on an alleged invalidity or irregularity of any deed to the State of taxes or of any proceedings leading up to the deed can only be commenced within one year after the date of recording of the deed to the State in the county recorder's officer or within one year after June 1, 1941, whichever is later.

‘Sections 351 to 358, inclusive, of the Code of Civil Procedure do not apply to the time within which a proceeding may be brought under the provisions of this section.’

This provision was effective May 19, 1941. Stats.1941, p. 1426, Chap. 290, secs. 7 and 8, and operative June 1, 1941. See note 1, sec. 124, Revenue and Taxation Code.

As to the deed from the State, plaintiff's action was commenced over four years after the execution of the tax deed from the State to defendant. Sections 3725 and 3726 of the Revenue and Taxation Code provide:

‘3725. A proceeding based on alleged invalidity or irregularity of any proceedings instituted under this chapter can only be commenced within one year after the date of execution of the tax collector's deed.

‘3726. A defense based on the alleged invalidity or irregularity of any proceeding instituted under this chapter can be maintained only in a proceeding commenced within one year after the date of execution of the tax collector's deed.’

These last two sections are based on and are a continuation of repealed sections 3897, subdivision 8 and section 3836.2 of the Political Code. Stats.1933, p. 2588, chap. 1012, in effect October 25, 1933; Stats.1935, p. 1441, chap. 396, in effect Sept. 15, 1935; and Stats.1939, p. 1921, chap. 529, in effect September 19, 1939. These cited sections were all in effect at the time plaintiff's action was commenced and they shortened and limited the time in which an action involving the validity of tax deeds could be commenced or maintained. Plaintiff's right to commence an action attacking the tax deed to the State expired June 1, 1942, one year after the last limitation in section 3521. Plaintiff's right to commence an action attacking the tax deed from the State to the defendant expired January 14, 1942, one year after the date of the execution of said tax deed. Plaintiff's action which was commenced February 27, 1945, was therefore too late if these sections are applicable to the facts established.

The legislature had the power to enact a statute shortening or lengthening the time within which an action may be brought as long as a reasonable time is left after the effective date of the statute, within which to commence the action. Mercury Herald Co. v. Moore, 22 Cal.2d 269, 275, 138 P.2d 673, 147 A.L.R. 1111; Title Guarantee and Trust Company v. Woody, 63 Cal.App.2d 209, 146 P.2d 252.

Section 3897, subd. 8 of the Political Code first provided a six-months limitation, which was later changed to one year. In construing this section with its six months provision, and holding it applicable, this court, in the case of Title Guarantee and Trust Company v. Woody, supra, held that Political Code section 3897, as it formerly read, was applicable to the State's sale of tax deeded property, even though the original tax proceedings were invalid, and an action to contest the validity of the proceedings not commenced within the time limited by subdivision 8 thereof was barred. It was also there held that subdivision 8 of that section was not a curative act but a statute of limitation and response, and the period of limitation thus provided was a reasonable one. The wording of sections 3725 and 3726 is analogous to section 3521 of the Revenue and Taxation Code, and the construction placed on section 3897 of the Political Code in the Woody decision would be equally applicable to the construction to be placed on section 3521, which refers to the deed to the State.

In Rand v. Bossen, 27 Cal.2d 61, 162 P.2d 457, the Supreme Court held that Political Code section 3480g, declaring that no proceeding to contest the validity of any credit on or payment of a reclamation district assessment may be commenced unless within six months from the effective date of the statute or the date of such credit or payment, fixes a reasonable time limit, and that attacks on the tax deeds to and from the State based upon those grounds are barred by these statutes of limitation.

61 Corpus Juris, p. 1427 et seq., secs. 2034b, 2035c, 2036(5), and 2037b, and the cases thereunder, are cited, which, in effect, hold that if a tax deed is void on its face, the statute of limitations will not run in favor of the holder thereof; and the statute of limitations will cure any mere irregularity or informality in the levy or assessment, but will not prevent an attack on the tax title when the irregularity is so defective as not to confer any jurisdiction on the officers to proceed with the sale.

The tax deeds here involved are valid on their face and the evidence in this case shows that plaintiff was never in actual possession of the property but that the respondent has been in actual possession since the date of his tax deed and has paid all taxes levied and assessed on said land. The authorities are at variance as to whether the statute of limitations will cure a jurisdictional defect.

In Meigs v. Roberts, Comptroller, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.Rep. 322, in discussing a provision of the law of that state making tax deeds which had been on record two years prior to the passage of the act conclusive evidence of the regularity of the sale and all proceedings prior thereto, if not assailed by direct proceeding within six months after the taking effect of the law, the court held that according to the intent and effect of such a provision, it was a statute of limitation, and said that there may be, in legal proceedings, defects which are not mere informalities or irregularities but are so vital in their character as to be beyond the help of retrospective legislation; that such defects are called jurisdiction, and that statutes of limitation will bar any right, however high the source from which it may be deduced, provided that reasonable time is given a party to enforce his right. Citing cases. See, also, Turner v. People of State of New York, 168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392. In view of the conclusion hereinafter reached that the defect alleged did not constitute a jurisdictional one, it becomes unnecessary to here determine that point.

The published delinquent list for the 1937 taxes, published in June, 1938, and the addenda sale notice of land sold to the State five years previous, which was attached thereto, was offered in evidence. The evidence shows that the taxes were delinquent for the years 1933, 1934, 1935, and 1936. There being no evidence to the contrary, it will be presumed that official duty has been regularly performed and that the delinquent lists, and notices required by law to be published, were published as required. Section 1963, subd. 15, Code Civ.Proc.; Jacoby v. Wolff, 198 Cal. 667, 247 P. 195.

The published delinquent lists and those notices of taxes due were all notices to the taxpayer that his property was delinquent and that the taxes were due from 1932 to 1937 inclusive. Such publication is notice to the taxpayer in tax proceedings and satisfies the due process of law provision of our Constitution. Merchants' Trust Co. v. Wright, 161 Cal. 149, 118 P. 517; 24 Cal.Jur. p. 326, sec. 300.

As far as the mailing of additional notices of sale prior to the sales to and from the State, or the mailing of any additional notices at all is concerned, such notices could have been done away with or not required by the legislature in the first instance without doing violence to due process. The first statutory requirement for giving additional notice of sale by mail after five years delinquency was the amendment in 1913 of section 3771 of the Political Code. Stats.1913, p. 556, chap. 299. The requirement of mailing additional notices of sale by the State is first found in section 3897 of the Political Code. Prior to 1913, the only notice to the delinquent taxpayer of sale to the State required by statute was the publication of the annual delinquent list and the notice thereto attached and, prior to 1905, the only notice required of sale by the State, was the published notice of sale. 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 could not be held that there was a violation of due process or that the failure to give any other notice of the intended sale would be a jurisdictional defect. Fox v. Wright, 152 Cal. 59, 61, 91 P. 1005; Warden v. Broome, 9 Cal.App. 172, 175, 98 P. 252; Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 P. 936.

The application of the statute of limitations was raised in the case of Griffith Co. v. Belchez, 76 Cal.App.2d 155, 172 P.2d 511. The decisions seem to settle the point that the application in this case of the statute of limitations provided for in sections 3521, 3725 and 3726 of the Revenue and Taxation Code is a bar to the present attack on the tax deeds to and from the State. Since the defect in the failure of the tax collector to mail a registered notice to the plaintiff at his last-known post office address is not a jurisdictional irregularity and since the additional notice required by the legislature is non-essential as a due process notice to the taxpayer, the legislature could have omitted, in the first instance, as they had in former years, the necessity of such additional notice, and accordingly it had the power to validate the failure to give such additional registered mail notice by curative acts. Merchants' Trust Co. v. Wright, supra, 161 Cal. at page 151, 118 P. 517; Chambers v. Duvall, 26 Cal.2d 139, 156 P.2d 921; City of Compton v. Boland, 26 Cal.2d 310, 158 P.2d 397; Wall v. State of California, 73 Cal.App.2d 838, 167 P.2d 740; Barrett v. Brown, 26 Cal.2d 328, 158 P.2d 567. It is only those acts or omissions that the legislature is restrained by constitutional legislation from sanctioning in advance, often characterized as jurisdictional, that cannot be validated by curative statute. Chase v. Trout, 146 Cal. 350, 80 P. 81; Miller v. McKenna, 23 Cal.2d 774, 147 P.2d 531.

The judgment in the present action can therefore be supported under either theory.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concur.