Los Angeles herald., 1892-03-06

p. II, that out of thousand cases in
court (of tax sales), not twenty have
been sustained To meet this tendency
OF judicial refinement very many statea
have OF late adopted very rigid legisla-
ton. The acts of congress we are con-.
siderlng must have had it in view.
Hence the stringent provisions thew
contain. They declare, in effect. that
the certificate of the commissioners sale
shall be evidence OF compliance with the
preliminary requisites of the sale. and
that this evidence shall be rebutted onlv
by proof of one or the other of three
specified things. There is no possible
excuse for not enforcing such statutes
according to their letter and spirit"
II this position be correct the appel
liant is not in position to make his first
objection that the certificates were not
filed by the recorder; but waving for
the time this point, and looking into the
evidence, it shows that they must be-
held to have been properly filed 80 far
as that fact can affect the rights of the
purchaser. 1t was the duty OF the tax
collector to present them to the re-
corder for filing. This he did. The re-
corder received them, but did not mark
them filed, because no fees were paid
him. 1t was public duty for which no
fees are provided. They must be deemed
to have been filed. Page vs. Rogers, 81
CAL, BOY; Section ITO, G. c.; Donald
VS.. Beals, 81 Cal, 399; Tregambo VS..
Comanche NJ. Co., 81 CAL, sos
The second point that no notice was
given of the application for the deed,
under section 1856 of the political code.
the defendant is, perhaps, not precluded
from making. Whether he Is or not
need not be decided in this case, for we
think no such notice was necessary.
Section 1855 was amended go as to re-
quire notice in March, 1885. Before
that no notice was required. Long
prior to this amendment the purchasers
right to deed had become absolute.
When the law was amended the owner
had no right to redeem, and the leeis-
lature could not deprive the purchaser
OF his absolute right.
Oulahan VS.. Sweeny, 70 Cal. 537.
does not hold to the contrary. On the
other hand, the intimations are in favor
of these views. There the time for re-
demption had not expired when the
amendment took effect, and the court
held that it did not have the effect to
extend the time for redemption, and
said: sit may be assumed, for the
purposes of this case, that the legis-
lature cannot make an absolute extern
sion of the time" Even if the lesia-
lature could do that. it would fall far
short of the necessities of this case.
Here under the provisions of the statute
the time for redemption had fully ex-
pired before the amendment, and if it
applies, its effect may be to compel one
fully entitled to deed conveying prop
erty worth many thousand dollars to
accept in lieu of it small cum.
The cases upon this subject are coll
lected by Cooley in his work ON Consti-
tutional Limitations. page 353. They
are not all in accord, but none of them
60 to the extent requisite to sustain the
contention OF appellant. The learned
author says that, 80 extend the time
for redemption is to alter the substance
of the contract, as much as would be
the extension of the time for payment
of a promissory note"
A fortiori would Law give a right
to redeem, when by the law under
which the purchase was made the right
to the deed has become absol, t.?
Third-lt is claimed that the assem-
ment was not made for any fiscal year.
That point seems to be the result of pure
carelessness.
Section 5, article 20 OF the constitution
provides that "the fiscal year shall COM
mence on the let day of July" OF course
it would end on the 3Oth Of June.
The fourth point is that no title was
shown in Hinchman. No such showing
was required. The deed establishes the
assessment prima facie. If it were
essential to the validity of the assess
ment that Hinchman should have been
the owner, it was incumbent on the
defense to negative the fact which had
been established by prima facie proof.
The defendant was not an innocent
purchaser without notice. Reeve w.
Kennedy, 43 CAL, GAL
As we have seen, the certificates must
be deemed to have been filed. If other
parties have suffered from the failure of
the recorder to do his duty, their rem
edy must be against him.
The point that the sale was under q,
local law, which contravened section Is.
article Nv of the constitution, seems
also to be an inadyertence. The law
was passed before the constitution was
adopted, and not amended until after
the tax sales were made.
We think the judgment and order
should be affirmed. TEMPLE, G.
We concur:
BELCnER, G.
VANCLIFF, G.
THE COURT.