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

PETERSON et al. v. JOHNSON et al.*

Civ. 18672.

Decided: April 07, 1952

John F. Poole, Los Angeles, for appellants. Holbrook & Tarr, Los Angeles, by W. Sumner Holbrook, Jr., Los Angeles, for respondents.

In this action to quiet title there was received in evidence, (a) certified copy of tax collector's deed to the State of California, dated October 1, 1937; and (b) original tax deed issued by the tax collector to plaintiffs, dated February 28, 1945. Then plaintiffs rested.

Judgment was for plaintiffs, and defendants appeal.

Defendants contend: (1) That plaintiffs redeemed for less than its true value the property described in their complaint from a larger parcel which had been sold for taxes, contrary to the provisions of Sections 4146 to 4154 of the Revenue and Taxation Code. (2) That no notice was given to the record owner of the original assessment and levy. (3) That the published delinquent tax list was erroneous. (4) That the interest of defendant Warren Johnson in the property could not have been lawfully divested, because he was in the armed services of the United States, and was protected by the federal Soldiers and Sailors Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq.

Objections were sustained to offers of evidence in support of the first three of the foregoing contentions, apparently upon the theory that Section 3711 of the Revenue and Taxation Code applied to the offered proof. This section provides that the deed from the state is conclusive evidence of the regularity of all prior proceedings except as against actual fraud.

The curative provisions of section 3711 do not apply here. Plaintiffs' case was prima facie only. Hall v. Chamberlain, 31 Cal.2d 673, 192 P.2d 759. The law in force at the time of a sale of realty to the state for delinquent taxes follows through all proceedings dependent on that sale. Billings v. Delgado, 51 Cal.App.2d 489, 125 P.2d 95. It follows then that defendants had a right to show, if they could, irregularities which they assert were fatal to the tax deed.

It is suggested in plaintiffs' brief that defendant Warren Johnson does not have title to the property which will support a judgment quieting title in him, or which will support his defense that the federal Soldiers and Sailors Civil Relief Act applies to him. This issue will have to be presented to the trial court on a retrial of the case.

The judgment is reversed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.