LILLIAN M. McPIKE et al., Respondents, v. WARREN D. HEATON, Appellant, 131 Cal. 109

HARRISON, J. The defendant was the owner of the undivided half of a certain tract of land in Alameda county on the first Monday of March, 1897, and for many years prior thereto, and on March 24, 1897, he made a grant, bargain, and sale deed of his interest in the land to one Jackson. On the next day Jackson conveyed the land to the plaintiffs by a grant, bargain, and sale deed, and the plaintiffs have since remained the owners thereof.

The land was assessed to the defendant for the purposes of revenue for the fiscal year commencing July 1, 1897, and taxes were levied thereon for that year by the city of Oakland and the county of Alameda, and on November 29, 1897, the plaintiffs, for the purpose of removing the lien of these taxes from said land, paid the same to the proper officers, amounting to four hundred and twenty-four dollars and eighty-three cents. The present action is brought to recover from the defendant the amount thus paid. Judgment was rendered in favor of the plaintiffs, and the defendant has appealed. By

section 3718 of the Political Code the taxes which were paid by the plaintiffs were a lien upon the land, and attached thereto as of the first Monday of March of that year, and the covenant implied from the defendant’s grant of the land, that the estate conveyed by him was at the time of such conveyance free from all encumbrances done, made, or suffered by him (Civ. Code, sec. 1113), embraces the lien of these taxes.

Such covenant was, however, a personal covenant of the same character as would be a covenant against any other encumbrance, and the rule is of ancient authority that a covenant that the land conveyed is free from encumbrances, whether express or implied, does not run with the land or pass to the assignee. (Lawrence v. Montgomery, 37 Cal. 183.) The plaintiffs 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 a 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 judgment is reversed, and, the appellant having died since the submission of the appeal, the judgment of reversal will be entered nunc pro tunc as of August 24, 1900. Van Dyke, J., concurred.