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District Court of Appeal, Fourth District, California.

WALL v. M. & R. SHEEP. CO. et al.*

Civ. 3714.

Decided: April 26, 1948

Roy A. Linn, of Los Angeles, for appellant. Borton, Petrini, Conron & Borton, of Bakersfield, for respondents.

This is an action to quiet title and, in a second count, to invalidate and have declared void taxes levied on the property for the year 1931–32, together with the tax sales and deeds through which title was later conveyed to the state and from the state to these defendants.

The property involved consists of six parcels, being sections or fractional sections none of which are contiguous. These properties were first marked sold to the state on June 30, 1932, having been assessed the preceding year to The Title Insurance and Trust Company. The parcels were deeded to the state on July 26, 1937, and sold by the state to these defendants on October 14, 1943. On March 16, 1944, the plaintiff acquired the rights and interests, if any, of one George W. Clemson who had become the owner of the properties, subject to the delinquent taxes, in 1932.

These properties are in the same school districts and this action involves the same tax proceedings as those involved in the case of Wall v. State of California, 73 Cal.App.2d 838, 167 P.2d 740, and the same grounds of invalidity are here asserted. This case was held in abeyance on demurrer until the decision in that case. The only difference between the cases originally was the fact that in Wall v. State the tax collector had not yet sold the property at public sale when the action was brought, while in the instant case the land was sold by the state to the defendants before this action was filed and before this plaintiff acquired any purported title to the land. After the decision in Wall v. State, the plaintiff herein amended his complaint by alleging that his predecessor in interest, George W. Clemson, became the owner of the property after the taxes of 1931–32 were levied and before the curative acts were passed, and by alleging that the curative acts of 1943 and 1945, Gen.Laws, Acts 8443, 8443a, are inapplicable and ineffective since they purport to levy a tax for local purposes where no valid tax existed and since they take the plaintiff's property without due process of law and divest him of his vested rights in violation of the Fourteenth Amendment to the Federal Constitution. The court sustained a demurrer to the complaint as amended, without leave to amend, and entered a judgment that the plaintiff take nothing. This appeal followed.

The appellant here makes the same attack upon the validity of these tax proceedings from their inception up to and through the deed to the state in 1937 as was made in the case of Wall v. State, supra, including the contentions that the appropriations for veterans' organizations were levied for a private purpose and were gifts, that the tax rates fixed resulted in collecting excessive taxes which were not needed, that school district taxes were improperly assessed, that there were various irregularities in the tax rolls and notices given, and that a single tax deed was made for all of the parcels although they were separately assessed. These contentions were all considered and held to be without merit in Wall v. State, and it would serve no useful purpose to repeat what was there said or to further analyze the authorities in that connection.

The appellant further contends that the deed of October 14, 1943, from the state to the respondents passed no title because the notice of sale upon which it was based was deficient in that it described these several parcels, which had been separately assessed to the same owner, all together as though they constituted one body of land, and named but one minimum bid, being the amount of the total taxes and penalties on all of the properties. It is argued that this notice of sale failed to comply with the requirements of section 3704 of the Revenue and Taxation Code, with the result that the sale and the deed from the state to the respondents are void. Essentially, this is the same attack that was made in Wall v. State with reference to the sale to the state, it being there contended that a single tax deed was made for all of the parcels even though separately assessed. It was there held that this was a matter which was within the purview of the curative acts and which was cured by them. The matter is not jurisdictional and does not violate the due process rule, and we can see no reason why the circumstance here complained of is not one which is covered and controlled by the curative acts. A further consideration is that the appellant is in no way prejudiced in this matter since, even under his contentions, title still remains in the state and any rights he attempted to purchase were cut off by the previous proceedings, as pointed out in Wall v. State.

The appellant contends that a different situation exists here since this is a suit against private individuals while in the case of Wall v. State, the state itself was a party. No valid distinction appears in this respect. Nor does any distinction appear in the fact, newly alleged, that the appellant's predecessor George W. Clemson became the owner of the property after the taxes were levied and before the passage of the curative acts. Clemson and the appellant each took subject to the existing tax delinquency and their rights or interests are in no way superior to those of an original owner. No rights have intervened in the constitutional sense and the appellant took with full notice of the existing situation.

Finally, the appellant contends that the defects in the tax proceedings upon which he relies are jurisdictional; that the curative acts are not applicable because they attempt to legalize taxes which are entirely void and, in effect, levy new taxes for local purposes; and that the construction given to the validating acts in the case of Wall v. State violates the Federal Constitution by taking property without due process of law, by denying to the appellant the equal protection of the law, and by impairing his contractual rights. This attack upon the curative acts of 1943 and 1945 and which, if upheld, would nullify all curative acts, cannot be sustained. It is well settled that the legislature can cure all matters within its sphere of action except defects which are jurisdictional or which violate the due process rule; that it may validate anything which it could have dispensed with in the beginning or any manner of procedure for which it could originally have provided; and that such curative acts may apply to and be effective as to pending litigation. Miller v. McKenna, 23 Cal.2d 774, 147 P.2d 531; Chambers v. Duvall, 26 Cal.2d 139, 156 P.2d 921; City of Compton v. Boland, 26 Cal.2d 310, 158 P.2d 397; Southern Service Company, Limited v. Los Angeles County, 15 Cal.2d 1, 97 P.2d 963; Wall v. State of California, 73 Cal.App.2d 838, 167 P.2d 740. Under these authorities none of the contentions here made by the appellant can be sustained. For more than thirteen years the owners of the properties here in question made no effort to pay these taxes or to redeem the property. The purpose and beneficial effects of the curative acts are peculiarly appropriate here, no good reason appears why they are not here applicable, and both the equities and the law are in favor of such an application.

The judgment is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.