Henry v. Garden City Bank & Tr. Co. of San Jose

VAN DYKE, J. The court below sustained the demurrer to the second amended complaint, and, the plaintiff declining to further amend, judgment was entered accordingly, and in favor of the defendant, from which this appeal is taken. The complaint consists of two counts. In the first it is alleged that one Murphy, being the owner of a certain tract of land situate in the county of San Luis Obispo, executed a mortgage to the plaintiff October 1, 1895, to secure the sum of thirty thousand dollars, with interest; that subsequently— to wit, February 16, 1897—said Murphy executed a second mortgage to the defendant to secure the sum of $16,670; that on May 9, 1898, plaintiff brought an action to foreclose his said mortgage, making the defendant herein a party defendant in said action; that said defendant made default, and plaintiff, August 11, 1898, had the usual decree of foreclosure; that on September 5, 1898, said property was sold under said decree of foreclosure, and plaintiff became the purchaser for the *55 amount specified in the judgment and decree, and there being no redemption a deed was duly executed and delivered to the plaintiff by the sheriff on said sale April 15, 1899, and ever since said sale the plaintiff has been, and now is, the owner of said land; that on the first Monday of March, 1898, the debt, amounting to $16,670, due defendant, and so secured by said mortgage executed by said Murphy, was assessed by the assessor of said county against the defendant corporation for the purpose of state and county taxes and for special school tax; that said defendant neglected and refused to pay said tax, and that such proceedings were thereafter had by the proper officers of said San Luis Obispo County, because of such failure and refusal to pay said tax, amounting with interest and penalties to the sum of $405.77; that the lands covered by the said mortgage were duly and regularly sold to the state of California and purchased by said state; that thereafter—to wit, on March 5, 1900—the plaintiff, in order to remove the lien and encumbrance resulting from such sale, was obliged to pay, and did pay, the sum of $406.30 to effect a redemption of said lands from the sale to the state. The second count is the same as the first, except that it relates to the taxes of 1899, which defendant failed to pay, and which became delinquent, and which the plaintiff paid before any sale thereof to the state. Among other grounds stated in the demurrer was that the complaint failed to state a cause of action, and we think it was properly sustained on that ground. The appellant bases his claim for a recovery of the amount paid by him to remove the encumbrance and lien on the property he purchased upon the provision of the constitution, carried into the Political Code (Const., art. XIII, sec. 4; Pol. Code, 3627). The provision in the constitution reads: “A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi-public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, *56 city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment; a full discharge thereof; provided, that if any such security or indebtedness shall be paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year.” The constitution, it will be seen, says: “The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security.” Here, however, the plaintiff was not a party to the security in question. After becoming the owner of the property, he redeemed from the state, and paid the taxes assessed upon the land, as stated, for the purpose of relieving his property from this cloud upon his title. The defendant, however, derived no benefit therefrom, and is under no obligation to refund the amount so paid. The question here presented has, however, been directly decided by this court adversely to the contention of the appellant in Canadian Co. v. Boas, 136 Cal. 419. The appellant concedes this to be so, but contends that the principles involved in that case do not appear to have been thoroughly considered by the court, and that they are in conflict with the decision in San Gabriel etc. Co. v. Witmer etc. Co., 96 Cal. 623, and that the importance of the question involved calls for a re-examination before being the basis of subsequent decisions. The opinion in San Gabriel etc. Co. v. Witmer etc. Co., relied upon by appellant, was by a divided court of four to three, and was followed in Angus v. Plum, 121 Cal. 608, and, as stated in the court’s opinion, “whether that decision was right or wrong,” upon the ground that the parties to the controversy in the latter case had acted upon the rule laid down in' the former. In McPike v. Heaton, 131 Cal. 109, 1 the defendant was the owner of the undivided half of certain land on the first Monday of March, 1897, and had been such owner *57 for some time, and on the 24th of March conveyed his interest to one Jackson, who on the next day conveyed it to the plaintiff by a grant-deed. The land was assessed to defendant Heaton for the fiscal year commencing July 1, 1897, and taxes were levied on the land for that year, and on November 29, 1897, plaintiff, for the purpose of removing the lien of these taxes, paid the same to the proper officers, and brought the action under consideration to recover from the defendant the amount thus paid. Plaintiff had judgment in the lower court, which was reversed here. In the opinion of this court it is said: “The plaintiff had no contractual relation with the defendant, and his covenant with Jackson did not pass to them. They could have protected themselves against these taxes either by assuming their payment as part of the consideration for the purchase or by suitable covenants with Jackson, but they have no right of action therefor against the defendant. San Gabriel etc. Co. v. Witmer etc. Co., 96 Cal. 623, cited by the respondents, involved a consideration of the relative obligations between a mortgagee and the owner of the land mortgaged, by reason of the peculiar provisions of the constitution in reference to the assessment and payment of taxes upon these respective interests in the land, and was determined upon the ground that by virtue of these provisions there is a personal obligation upon the mortgagee in favor of the mortgagor for the payment of the taxes assessed upon the mortgage, and that if these taxes are paid by the owner of the land he may reimburse himself therefor, either by deducting the amount from the mortgage debt or in a separate action therefor. There is, however, no personal obligation upon the owner of land for the taxes levied against it, and the payment of such taxes can be enforced only by a sale of the land in the mode prescribed by the statute. The defendant was under no personal liability for the taxes paid by the plaintiffs, and the case cited is not applicable to the present case.” The opinion in that case was signed by one of the justices composing the majority of four in San Gabriel etc. Co. v. Witmer etc. Co., 96 Cal. 623. The opinion in Canadian Co. v. Boas, 136 Cal. 419, was written by another of the justices who concurred in San Gabriel etc. Co. v. Witmer etc. Co. This last ease, as already stated, is on all fours with the one at bar. After stating the facts, the court says: “We *58 see no ground upon which the action could be maintained. There was no contractual relation whatever between appellant and respondent with respect to the money sued for. . . . The judgment and lien created by the tax on respondent’s second mortgage interest had been satisfied and removed by the sale to the state. (Pol. Code, sec. 3716.) The money paid by the appellant to the state was not for the benefit of the respondent, whose entire interest in the property had been first taken by the state for taxes, and afterwards had again been entirely swept away by the judgment of foreclosure. The appellant is in no different position from that of any other purchaser of land who finds his title clouded.” This case contains a clear interpretation of the constitutional provision under consideration, and we are not at all inclined to either overrule or modify it, and this disposes of the case now before us. The judgment appealed from is affirmed. McFarland, J., Henshaw, J., Angellotti, J., concurred. Footnotes [1] 82 Am. St. Rep. 335.