The herald., 1893-07-25
SOME LAW ABOUT TAX SALES
Two Opinions from the Supreme
Court.
The Case Of william Hays Against
the County.
Some Points of Interest to Property
Owners and Tax Title Buyers.
Commercial Law Points In
Another Case.

A decision Dy the eupreWe Courtin tne
case of VIM. Hayes vs. the county oi
Los Angeles was received r~filing yes
terday by Deputy Clerk Sesnon.
The opinion rs quite long one, and
the supreme court reverses the superior
court, directing it to override the de-
murrer to the complaint.
The action was instituted to recover
from the county taxes levied for the fis-
cal year ending June 80, 1890. and paid
upon q delinquent sale OF property by
the aseignors Of the plaintiff.
According to the averments OF the
complaint, the officers assessed certa1n
real property in the county to the owner
thereof. and also assessed the same
property for the came fiscal year to one
Samuel Stratton. The owner paid the
tax levied upon the property. The
assessment to Str9tton was not paid, and
after the usual notice the tax collector
OF defendant on the 7th day OF March,
1890, offered the property for sale, repre-
senting that the state and county taxes
thereon for the fiscal year ending June
80. 1890, had not been paid, and were
still due and unpaid.
A. w. Berry relying upon the state
ments of the tax collector, became the
purchaser OF the property. paying there
for the taxes, percentum and costs,
amounting to S35.96.
He received tax certificate. which he
assigned to the plaintiff, and the latter,
after notice had been given ss provided
by law, applied to the tax collector for 9
tax deed. 1t was refused on the ground
that the tax had been paid prior to the
payment shown in the written certifi-
cate. Neither the plaintiff nor his
grantor had any notice that the tax had
been once paid prior to the sale, until
September 10, 1891. y
October s, 1891, the plsintifpresented
to the bosrdtof supervisors OF the county
claim for the amount paid by his as
sigpor on account OF the double assesa-
kment, which the board refused to allow.
The defendant demurred to the COM
plant on the ground that there was q
defect In that the state of California was
not made a defendant; that the COM
plant does not state facts sufficient 10
constitute a cause of action; that the
demand is barred by section Al of the
county government act. This is the
section which provides for the repay
ment by boards OF supervisors OF money
paid more than once on taxes or errone-
ously or illegally collected.
The supreme court in discussing the
matter, the superior court having sus-
tanned the demurrer of the defendant,
the county OF Los Angeles, says that it
had often occurred prior to the adoR-
ton of the section above, that by acci-
dent or oversight property was twice
assessed and the taxes twice collected,
yet the obstacles in the way of q recov-
cry OF the taxes thus improperly COL
lected were SO. numerous and perplex-
ing that the remedy for recovery was
scarcely worth pursuing. The object of
the statute was to provide plain
means for the refuhding of such money
to which the county and state have
neither a moral or legal right. .s.sy1.s
The court further says that when the
taxes upon property have for a. given
fiscal year been once paid by the owner
the county has no right or Ito sell
yor in any manner affect or incumber the
land by sale thereof. The lien Of the
tax is gone, and he who paid fought in
Justice to be entitled to recover it back.
The authorities appeared to be uniform
that where sum OF money has been
paid upon confederation which has
entirely failed the law implies q promise
to refund it.
Referring to the claim of the county
that the use OF the word may" in the
statute rendered it optional with them
whether to refund the money or not,
the court Gays that where public in
terest or private right requires that the
thing should be done, then the word
may" is generally construed to mean
the same as ''ehalf."
II IolI Io 6at n
plant demurred to constitutes cause
of action against the defendant and
that the State OF California is not q
necessary party defendant, and that the
plaintiff was not barred by the limit OF
a year to present the claim. He did
not know it until September 10, 1891,
and presented the claim Octocer s, 1891.
To hold otherwise, the court concludes.
would be to hold that the county could,
through it's collector. for whose acts
within the scope of his powers, it is
liable. unlawfully collect taxes from two
or more persons upon the same prop
ertv for the same fiscal year, and then
by withholding the facts for year es-
cane liability, The decision OF the
lower court is, therefore, reversed, and
it is directed to ovefrule the demurrer
W buC COLu upioiA& a,
An opinion was slso received in the
case of A. Fl. Eahzger, appellant, ys.
Frank W. Gregg, S. s. Patton and w: F..
Montague, respondents, and another
case Of the same parties. The actions
were on two promissory notes made by
the defendants, each for $2500. In the
irst Gaze the superior court gave ludg-
ment for the defendants, and in the
second case, brought later, in which the
complaint was slightly changed, also
gave Judgment for the defendant. The
Judgments were appealed FROM, Thesu
preme court, after discussing the points
raieed. held that the court below erred
in admitting in evidence the judgment
roll in the first action against PLAINTIFF
objection in bar of plaintiffs right to
recover in this action. The judgment
in the first case is affirmed and IN the
second reversed, and the case remsnded
for new trial. Chief Justice Beatty
dissents from the opinion OF the other
justices, thinking the Judgment in the
first case is erroneous and ehouiq pe re-
versed, but he concurs in the reversal OF
the second case.