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District Court of Appeal, First District, Division 1, California.



Civ. 13820.

Decided: April 20, 1949

Carlyle Miller, of Aptos, for appellants. Fred N. Howser, Atty. Gen., and E.G. Benard, Deputy Atty. Gen., for respondents.

Appellants commenced this litigation to contest the validity of certain tax deeds issued to the State of California on certain lands located in the County of Santa Cruz. The State cross-complained. This pleading alleged that the properties involved were conveyed by deed to the State by the tax collector of the county on certain designated dates for non-payment of delinquent taxes and/or assessments, and that the deeds thereto were subsequently recorded in the office of the recorder of the county. The properties were described and the pages on which the deeds were recorded were listed. The cross-complaint then alleges that at all times subsequent to the recordings of the various deeds the State has been the owner of the various parcels and entitled to the rents, issues and profits from such lands; that since the dates the deeds were recorded the appellants have taken and retained the rents, issues and profits; that the exact amount thus retained is unknown to the State, but on information and belief is alleged to be $40,000; that the State has demanded of appellants an accounting, but appellants have refused to comply and have not accounted nor paid to the State any portion of such rents, issues and profits. The prayer is for the sum of $40,000, for an accounting, and for costs.

Concurrently with the filing of the cross-complaint the respondent filed an affidavit for attachment, alleging that appellants were indebted to respondent in the sum of $40,000 “upon a contract for the direct payment of moneys, to wit: for rents, issues and profits” taken from real property owned by respondent. The writ of attachment was issued on October 1, 1947. On October 17, 1947, appellants moved to discharge the writ on various grounds, among them being that the cross-complaint did not state facts sufficient to constitute a cause of action, and that the affidavit was insufficient and the writ improperly issued. On November 17, 1947, respondent amended its affidavit to allege that the money claimed was due “upon a contract for the direct payment of moneys, or upon an obligation imposed by law, or upon both such contract and such obligation.” On December 1, 1947, there was filed a further amendment to the affidavit in support of the attachment, this time alleging that the money claimed was due “upon an obligation imposed by law.”

On December 11, 1947, the court denied the motion to discharge the attachment and from that order this appeal is taken.

Appellants make many contentions challenging the validity of the order under attack. We do not find it necessary to pass on most of these contentions because, in our opinion, there is one basic defect in the proceedings that requires a reversal, and that is that the cross-complaint is subject to a general demurrer. It is quite clear that, where the pleading constituting the basis for the attachment is fatally defective and subject to a general demurrer, the attachment must fall if the pleading is not amended prior to the hearing of the motion to dissolve. Pinkiert v. Kornblum, 5 Cal.App. 522, 90 P. 969; Wolford v. Neustadter, 21 Cal.App.2d 417, 69 P.2d 909; Redwood Fibre, etc., Co. v. Miller Mfg. Co., 61 Cal.App.2d 505, 143 P.2d 389; Yosemite, etc., Ass'n v. Case–Swayne Co., 73 Cal.App.2d 806, 167 P.2d 541; Syrett v. Strickland, 86 Cal.App. 623, 261 P. 484. While it is true that the motion to dissolve an attachment cannot be made to perform the office of a demurrer, and that if the complaint can be amended so as to make it valid such permission should be granted, such amendment must be made before the motion is ruled upon. Wolford v. Neustadter, 21 Cal.App.2d 417, 69 P.2d 909. Here no attempt to amend was made.

It is equally true, and not questioned by respondent, that where the State enters the courts as a litigant it is bound by the general rules of practice and procedure applicable to all litigants. Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 56 P.2d 950; People v. Kings County Dev. Co., 48 Cal.App. 72, 191 P. 1004; Rio Del Mar, etc., Club v. Superior Court, 84 Cal.App.2d 214, 190 P.2d 295.

The cross-complaint here involved is fatally defective in that it fails to mention directly or inferentially, substantially or at all, the proceedings leading up to the tax sales constituting the basis of respondent's claimed title. The deeds are not attached to the pleadings as exhibits. While, as an evidentiary matter, when such tax deeds to the State are introduced into evidence, the deeds are prima facie evidence of certain facts, § 3517, Revenue & Taxation Code, and conclusive evidence as to others, § 3518, Revenue & Taxation Code, such sections do not dispense with the necessity of pleading, at least substantially, the facts leading up to the issuance of the deed or, where the deed contains the necessary recitals, of attaching it to the pleading. Respondent concedes that its only claim to the rents, issues, and profits involved is based upon ownership, and that its ownership is based upon the tax deeds. See State v. Royal Consolidated Min. Co., 187 Cal. 343, 202 P. 133. Here the respondent knew that appellants were challenging the validity of the tax deeds, because appellants started this action by filing a complaint, the sole purpose of which was to challenge those very deeds. From a very early date in this state it has been, and still is, the law that, when a tax title is relied upon in a pleading, it is essential that the pleader set forth, at least in substance, the basic facts showing that the statutory provisions have been followed. One of the early and leading cases so holding is Russell v. Mann, 22 Cal. 131. That was an action to recover a quartz mill. The defendant claimed title through a tax deed. The trial court sustained a demurrer to the answer on the ground that the defendant had failed to plead all of the required facts. In affirming, the Supreme Court stated, 22 Cal. at page 133: “All the provisions of the statute for the assessment of taxes and for the sale of property for their non-payment must, in their substance, be strictly pursued in order that a title acquired at such a sale should be valid. Whenever a tax title is specially set forth in a pleading it is necessary that every fact should be averred which is requisite to show that each of the statutory provisions has been complied with. Owing doubtless to the number of acts required to be done in the assessing and levying of taxes, and in the proceedings to sell property for their non-payment, and the embarrassments attending the proof of many of them, especially after the lapse of any considerable time, the Legislature has provided that the deed executed upon such a sale shall state certain of these essential facts, and shall be proof of the matters by it set forth, subject to certain exceptions. But this provision as to the effect of the deed as evidence does not dispense with the necessity of averring every essential fact in a pleading in which a tax title is specially set forth.”

The Court concluded that even though the answer alleged “in detail, and in proper form, a pursuance of all the requirements of the revenue law subsequent to the levy,” 22 Cal. at page 132, the answer was fatally defective in that it failed to allege the year in which the tax was imposed. See, also, Dye v. Dye, 11 Cal. 163; Keane v. Cannovan, 21 Cal. 291, 82 Am.Dec. 738.

In People v. Jackson et al., 24 Cal. 630, it was held that when a tax title is relied upon, although the code dispenses with the necessity of pleading conditions precedent in contract cases, such rule cannot be extended, and therefore in tax cases all conditions precedent to the issuance of the deed must be pleaded. See, also, Hall v. Theisen, 61 Cal. 524; Himmelman v. Danos, 35 Cal. 441.

The rule of these cases, although somewhat relaxed, has been frequently followed. In Metteer v. Smith, 156 Cal. 572, 105 P. 735, a defendant was relying upon a tax deed. The deed was excluded from evidence. This was upheld on appeal, the court stating, 156 Cal. at page 575, 105 P. at page 736, “The court's ruling excluding the offered deed was also entirely defensible under the general objection that it was incompetent, irrelevant, and immaterial because there was no allegation in the answer of the matters essential to the validity of the tax deed. ‘The recitals in a tax deed are declared by the statute to be prima facie evidence of the proceedings recited; but it has never been supposed that a party who sets forth a tax title was thereby excused from alleging that those proceedings were had. The reverse has been decided by this court.’ Himmelman v. Danos, 35 Cal. [441] 449.” The Court then cites and quotes from Russell v. Mann, supra.

In Tilton v. Russek, 171 Cal. 731, 154 P. 860, the defendant, in a quiet title action, claimed that he owned a valid mortgage which had been executed by a mortgagor who held title through tax deeds. The precise holding was that in such a case all the steps leading up to the tax sales need not be alleged, but the Court also held that, had the party “undertaken to plead a title derived under a delinquent sale, he would have been required to allege every proceeding essential to the validity of such sale.” 171 Cal. at page 735, 154 P. at page 861. See, also, Smart v. Peek, 213 Cal. 452, 2 P.2d 380; Kinley v. Thelen, 158 Cal. 175, 110 P. 513.

The latest case discussing this problem appears to be the recent decision of this court in Penaat v. Guasco, 84 Cal.App.2d 445, 191 P.2d 564. This was an action to quiet title to property purchased at a tax sale. The complaint failed to allege directly the facts required by Russell v. Mann, supra, but the pleader attached a copy of the tax deed to his pleading, and the tax deed contained the necessary recitals. This was held sufficient compliance with the rule. The Court stated the problem as follows, 84 Cal.App.2d at page 448, 191 P.2d at page 565: “Defendant recognizes that in the ordinary quiet title suit it is not necessary for the plaintiff to allege his chain of title, but urges that where a tax title is set forth in a complaint compliance with all statutory provisions must be alleged. The following statement from 24 Cal.Jur., pages 395, 396, § 366, is quoted in support of this contention: ‘One who sets up a title derived from a sale for delinquent taxes is required to show by appropriate allegations that all the proceedings necessary to the regularity of such sale were had. And this is true despite the fact that the legislature has declared that a deed, duly acknowledged or proved, is primary evidence of certain matters affecting its validity.’ ” The Court then quotes and discusses several of the early cases, including Russell v. Mann, and then states, 84 Cal.App.2d at page 450, 191 P.2d at page 567: “There are later cases that do not state such a strict rule as that found in Russell v. Mann, supra, but the case still seems to be held as an authority. * The so-called strict rule in Russell v. Mann would hardly receive the considered approval in 1948 that was given in 1863.” We then went on to hold that, inasmuch as the deed was attached to the pleading as an exhibit, and since the deed contained recitals of all the facts, compliance with the rule of Russell v. Mann had been had.

It will thus be seen that, although the rule of Russell v. Mann has been somewhat relaxed, it has never been held sufficient to plead merely that the party claims through a recorded tax deed. That is all that is alleged in the instant case, even though the respondent knew the validity of its tax deeds was in issue.

Some reference should be made to § 3950 of the Revenue and Taxation Code, although the section is not mentioned or relied upon by the parties. That section, adopted in 1943 and amended in 1945, authorizes a purchaser of tax-deeded property from the State to bring an action to determine adverse claims to the property where “all subsequent taxes levied have been paid,” and requires that the complaint in such an action shall be “verified and shall aver the matters above enumerated.” The section is of no assistance to the State. In the first place, inasmuch as it requires an averment that taxes levied subsequent to the sale from the State have been paid, by its very terms it does not apply to the State. In the second place, and of more importance, the section, even where it applies, does not dispense with the requirement that where a tax deed is relied upon substantial compliance with the tax laws must be pleaded—it simply adds the requirement of pleading payment of subsequent taxes.

Respondent's only reply to the above point is that its cross-complaint was practically copied from, and is in substantially the same form as, the complaint in People v. Maxfield, 30 Cal.2d 485, 183 P.2d 897. That was an action by the State to recover rents and profits from real property received by the defendant during the period the State had title under a tax deed, but brought after the former owner had redeemed. The only question discussed in either the majority or dissenting opinions in that case was whether, after redemption of the property, the State is entitled to an accounting, and to the rents collected by the redemptioners during the period the State was the owner. The majority opinion held that the State was entitled to these rents as an incident of its ownership. The three dissenting justices disagreed. But in neither the majority nor the dissenting opinions is there any discussion of the sufficiency of the complaint insofar as it relates to the title of the State. Russell v. Mann, supra, is not mentioned nor is any mention made of the rule of that case. Both opinions assume the validity of the tax deeds. That is quite different from this case where the State knew, by reason of the complaint already on file, that the validity of its deeds was the basic question involved.

We have secured the record in the Maxfield case. It demonstrates that both sides conceded the validity of the tax deeds, and that this assumption in the Supreme Court opinions was correct. While the complaint in that case was substantially similar to the one here, and examination of the briefs filed in both the Appellate and Supreme Courts demonstrates that neither litigant raised the question of the sufficiency of the allegations of the complaint insofar as the allegations of the State's title were concerned, and neither side cited Russell v. Mann or any of the other cases stating the rule of that case, or discussed or referred to, in any way, the rule of that case. It is elementary law, of course, that a decision which does not discuss or refer to a particular point of law, cannot be considered as an authority on that point. Mortgage Guarantee Co. v. Chotiner, 8 Cal.2d 110, 64 P.2d 138, 108 A.L.R. 1080; Oakland Pav. Co. v. Whittell Realty Co., 185 Cal. 113, 195 P. 1058; Donner v. Palmer, 31 Cal. 500. It is inconceivable that the Supreme Court intended to overrule Russell v. Mann and the long line of cases following it, without either mentioning the cases or the rule of that case.

The order denying the motion to quash the writ of attachment is reversed, with directions to grant the same.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.

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