Amador ledger., 1909-03-05
IMPORTANT SUPERIOR
COURT DECISION
On Tax Sale Case.
MendenhalI VS.. Gregory.

OF hmadOr.
Asa v. Mendenhall. plaintiff, vs.
U. s. Gregory, as tax collector OF the
county Of Amador. defendant.
This is a proceeding for writ of
mandate against the defendant as tax
collector of Amador county to require
him upon payment of s2975,to execute
to the plaintiff a deed conveying all
the interest of the state of California
In and to the Last Chance, quartz
mine, the Eclipse quartz mine, and
Eclipse Extension quartz mine, all
within said county of Amador.
Plaintiff in his petition has alleged
facts showing that said property was
assessed for state and county taxes;
that on May 1st, 1903. was sold to the
state Of California for n-payment
of taxes. penalties and costs, amount
ing to 2972.2i. That on December II.
1903, the controller of the state of
California, under the provisions of
sec. 1897 of the Political code. by
written authorization directed the de-
fendant as such tax collector to sell
the said property at public auction,
In separate parcels, to the highest
bidder for cash in lawful money of
,UnitedEStates upon giving the notice
required by said section 1897 of the
political code. That after the publi
cation of the required notice, at the
time appointed for the sale, the de-
fendant stated ''that he would read
the notice of sale If there was any
one present who desired that it
should be read;" that thereupon the
parties present waived reading of the
notice, and the defendant then stated
"that the purpose of said notice of
sale was to sell the parcels of pro
perty, but that ne had received pro-
tests for and against the making of
the sale. That thereupon plaintiff
objected to any postponement of the
sale, and offered S29l5 for all of said
property (that beiGg an amount equal
to the sum total of the taxes, special
road taxes, total penalties for de-
linquenoy, costs, interest and cost Of
publication of notice of sale); that
plaintiff made tender of said sun
of S2975 to plaintiff, and demanded a
deed; that no other bid was offered,
and the defendant thereupon post
poned the sale and refused to execute
deed" 1t is not alleged in direct
terms IN the petition that deed for
said property was ever executed to
the state, although such recital is
contained in the order of the con.
troller directing the sale.
No point is made by defendant,
however, as to the sutticiency Of the
complaint in this particular
The defendant has demurred to the
petition upon the ground that 1t does
not state facts sufficient to entitIe
plaintiff to the relief demanded, and
also has set up many special aud
bOOhhiul VI AOh0
of which | deem to be we'll taken.
There is no provision of the statute
in express terms giving either the
controller or the tax collector power
to postpone a sale of this char acter,
and neither has such power been
questioned in any court of this state,
so far as known to court and counsel.
Plaintiff has cited many authorities
supporting the doctrine that madamus
will lie to compel the performance
of duty enjoined upon a ministerial
officer, and our own code of civil
procedure. seotion 1885, provides that
it may be issued to compel the per-
formance of an act which the law
specially enjoins as duty resulting
from an office. trust or station. IT
the facts set out in the petition are
sufficient to show that plaintiff be-
came entitled to deed from the tax
collector upon the tender of the sum
Of S2975, the writ of mandate will
issue requiring the defendant as such
tax collector to issue to plaintiff a
deed upon the payment of such sum
of s29i5.
That where sale has been actually
made and the oHcer has refused to
execute deed, he may be required
to do so by the court, is fully sus-
tanned in Mcmillan VS.. Richards, 8
CAL. 365.
Plaintiff has cited Oesty on Taxa
tion, to the effect that tax sale
made other than at the time notified
will be void. but l think 1t will be
found that this rule applies only