The herald., 1893-10-07
A LONG PEND NG CASE.
THE SUPREME COURT REvEHSES
TIE BALLEHINU JUDGMhN'g.
when Dell. qusnt Tax Sale ia Legal.
other Dec sinns Made by
tho snpreme Colrt
Rtcntved.

The supreme court has reversed the
Judgment OF the euperior court OF Los
Angeles in the case brought by the state
against Bailerino to recover the amount
Of taxes levied in the year 1888 for state
purpoees upon his property. The opin-
ion was received for fling yesterday by
Deputy Clerk Sesnon. Tae case hsd
been on appeals long tine.
The amount Of the delinquent tex
exceeded $500. and the suit was for the
amount and per cent for delinquency,
and interest, and for decree that the
property be cold. Judgment went for
the plaintiff, from which Ballerino ap-
pesled.
The applicant contended that the au-
thority given to the county to sue is ex-
cIasiye, and that the people of the state
were not authorized to maintain such
actions. TIE supreme court does not
cclncde with this contention.
he court does hold, however. that
tEe complaint did not state facts eUii-
tient 10 entitle the state 10 maintain the
action. They ~ that it is very clear
that the people oi the state are not au-
thoiizad to commence an action for the
recovery OF tie delinquent tax until
alter the property has been once offered
Tor sale. Il WAS not al eyed in the com
plant that sAis condition was complied
with, or thnt the controller ever directed
the iax collector to only once offer he
p,operty for sale. The averneut that
fhe defendant procured temporary in-
junction againat the sale, and that it was
not dissolved until May 10, 1890, did net
cure the defect. U oon the points men,
tioned the judgment and order are re-
vefaed.
MOTION TO DIrEiss DENIED.
The supreme court has also denied o
molten 10 dismiss the appeal in the
case of Adolph Anthony. respondent,
ps. Fred Grand appellent, a San Diego
icssp. II was "a appeal from Judgment
entered against the defendant aud an
qr.ier denying motion for a new trial.
TIE res pendent moved to dismiss on the
AgroDnd that, when it was taken, an
other and prior appeal from the came
Judgment and order was pending. The
conrt save thai the second appeal was
taken alter the first had been dismissed
prejudice and denies the motion
to dismiss.
The supreme court also atlirms the
Judgment Of the superior court OF Los
Angeesi in the case of the county OF Los
Angeles vs. Ballerino ct nl., for the reas-
ons given in former opinion filed last
March.
FREEMAN vs.. GEIswoLD.
The Judgment OF the Los Angeles SUI
perior court has also been affirmed in
the caee of Daniel Freeman, respondent,
VS.. Daniel Griswold. appellant. 1t was
an action on q written contract entered
into between ths assignor OF the plaiut-
ill and the defendant for the sale and
purchase OF certain real estate, and was
brought to recover balance OF s5eG3. "a
on account Of the purchase price and in-
terest. Plaintiff had judgment and the
appeal was from that and an order de-
nying new trial.
The court holds that covenant in an
agreement to convey land, which pro-
vides that in the event OF failure to
comply with the terms OF payment by
the purchasers, which was the fact in
this case. no payments but $233l.6
paid at the execution of the contract
having bean made, the seller shall be
released from all obligations in law or
equity to convey the land. and the pur-
chaser shall forfeit all right thereto,
time being the essence OF the contract,
is q covenant for the benefit OF the ven-
dor, and must be construed as authoriz-
ing him 10 avoid the contract or not, at
his optinn -rd doee not authorize the
Gfs 81 te 10 advantage of his own
0ci Hs .ng payment. The iudg-
.fG 1i5 are affirmed.