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District Court of Appeal, Third District, California.

Harry SEARS, Trustee, and Nevada Investment and Finance Corporation, a corporation, Plaintiffs and Appellants, v. COUNTY OF CALAVERAS, State of California, George G. Braddock, A. J. Gianelli, Marvin L. Waters, Frank A. Crespi, Claude T. Smith, Frank Langford and Board of Supervisors of Calaveras County, Defendants and Respondents.

Civ. 8299.

Decided: October 13, 1954

Francis T. Cornish, Berkeley, for appellants. Joseph S. Huberty, Dist. Atty., Virgil M. Airola, Special Counsel of San Andreas, San Andreas, and the Attorney General by E. G. Benard, Asst. Atty. Gen., Irving H. Perluss, Asst. Atty. Gen., Edward P. Hollingshead, Deputy Atty. Gen., for respondents.

This is an appeal from a judgment of dismissal entered upon an order sustaining demurrers to a third amended complaint without leave to amend. The action puts in issue the validity of a deed to the State for taxes and the validity of proceedings leading up to the deed. The real property involved comprises patented mining claims and the alleged ownership of minerals underlying another parcel. The final complaint contained three counts. By the first count it was alleged as follows: On and prior to the first Monday in March, 1935, Calaveras Central Mining Corporation was the owner of the real property involved; November 30, 1928 it conveyed the property to one Cannon, as trustee, for the benefit of Helen Roesch, from whom it had borrowed money, to secure the repayment of the same; on September 9, 1938, the acting trustee under the trust indenture sold the property for default in the payment of the borrowed money and one DeLancey became the owner. The present plaintiff Sears, who sues as trustee, derives title through DeLancey. Sears holds the property in trust for various parties except that in 1944 he sold in place the placer gold underlying the land to his co-plaintiff, Nevada Investment and Finance Corporation; in March of 1935 the Calaveras County Assessor assessed the five parcels separately, and the total of the taxes levied amounted to $750 for 1935–1936; these taxes were not paid; on June 29, 1936 the property was sold to the State; no redemption being effected, the property was deeded to the State July 2, 1943; since February 9, 1938, when the Roesch trustee sold the property to DeLancey, Sears and his predecessors have been in the actual, continuous and exclusive possession of the property.

The second count is in the form of a count to quiet title. It contains the usual allegations of ownership and wrongful claim of adverse interest.

The third count is an amplification of the first two, which it adopts in the main by reference thereto. It contains allegations that various persons immediately after February 9, 1938, entered into a conspiracy to create excessive tax liens upon the property by wrongfully increasing the assessed valuation, the purpose being to render the former owner and Sears unable to pay the taxes and thus through tax proceedings to divest them of their interest therein. It is alleged that these valuations were increased for the period from 1938 until 1948 and that, as so increased, they were arbitrary, unreasonable, fraudulent and made for the said fraudulent conspiratorial purpose. It is alleged that a total sum of $12,543.94 has actually been paid in taxes during those years and that these payments are in excess of ‘any legal assessment and tax’; that in July of 1948 the plaintiffs petitioned the Board of Supervisors of Calaveras County ‘sitting as a board of equalization’ claiming that the said tax sale and tax deed were void and demanding repayment to them of the sums paid and an adjustment of assessments; that though evidence was introduced supporting their claims of unlawful assessment and invalid sale and deed yet the board denied the petition and refused all relief. We think it unnecessary to give more detailed recitations of the contents of the pleading.

By their prayer the plaintiffs ask that it be adjudged they are the owners of the real property; that none of the defendants, including the state, which holds the tax deed, has any interest therein; that it be further declared the sale and the deed were null and void and that it be decreed all taxes levied are annulled and cancelled.

By appropriate demurrers the defendants interposed the statutes of limitations contained in Sections 175 and 3521 of the Revenue and Taxation Code. Section 175 provides:

‘All deeds heretofore and hereafter issued to the State of California * * *, by reason of delinquency of property taxes * * *, shall be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction to determine the validity of said deed commenced within one year after the execution of said deed, or within one year after the effective date of this section, whichever be later.’

This legislation was enacted in 1945. The action herein was begun in 1948, much more than one year after the legislation became effective and about five years after the execution of the State's deed. Section 3521 of the Code provides:

‘A proceeding based on an alleged invalidity or irregularity of any deed to the State for 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 office or within one year after June 1, 1941, whichever is later.’

The State's deed was recorded the day of its execution, July 2, 1943. This action was therefore begun long after the time allowed by either code section. The code sections are statutes of limitation and since they allow a reasonable time for an owner affected thereby to sue and to thus challenge the validity of tax deeds and of proceedings leading thereto they are competent to bar such actions even though the defects alleged to exist in the tax proceedings are the so-called jurisdictional defects. Central Valley Equipment Co. v. State of California, 98 Cal.App.2d 778, 779, 220 P.2d 811. In Davault v. Essig, 80 Cal.App.2d 970, 972, 183 P.2d 39, 40, the court said:

‘The appellants argue that section 3521 does not apply in such a case as this where the attack is made on jurisdictional or constitutional grounds, raising the point that the original proceedings which led to the sale to the state were entirely invalid. This contention is without merit since section 3521 is not a curative act but is a statute of limitation and repose, providing a reasonable period of limitation. Title Guarantee & Trust Co. v. Woody, 63 Cal.App.2d 209, 146 P.2d 252. The principles applied in Mercury-Herald Co. v. Moore, 22 Cal.2d 269, 138 P.2d 673, 147 A.L.R. 1111, are applicable here. If the shortening of the period of redemption, where a reasonable time is allowed in which to act, is not violative of constitutional rights it would seem to be even more clear, under principles which are frequently applied, that a right exists to fix some reasonable limitation upon the time within which a constitutional right may be exercised, by which a limitation is placed on the time within which an action may be commenced to attack the validity of a deed to the state, which deed is given after the five-year period of absolute right of redemption has expired.

‘In Meigs v. Roberts, Comptroller, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.Rep. 322, after mentioning the general principle that curative acts will not cure jurisdictional defects, the court said: ‘This principle does not apply to a statute of limitations; for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right.’'

We hold each count in the complaint is barred by the limiting legislation and therefore the trial court was correct in sustaining the demurrers without leave to amend.

The judgment is affirmed.

VAN DYKE, Presiding Justice.

PEEK and SCHOTTKY, JJ., concur.

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