JOHN G. KLUMPKE, Appellant, v. GEORGE H. BAKER et al., Respondents, 131 Cal. 80

HARRISON, J. Action to quiet title. Judgment was rendered in favor of the defendants, and the plaintiff has appealed from an order denying a new trial; The plaintiffs title is based upon certain tax deeds for different portions of the premises described in the complaint, three of the deeds being -for the .taxes thereon for the fiscal year ending June 30, 1883, and one for the succeeding year. The deeds were all executed to the plaintiff July 13, 1886, and this action was commenced July 11, 1891. Upon the introduction of the deeds in evidence the plaintiff rested.

Unless, therefore, some evidence was introduced on the part of the defendant which had the effect to impeach the validity of these deeds, the plaintiff was entitled to judgment. (Pol. Code, sec. 3788.) The defendants offered certain evidence to the effect that the lots for which the deeds had been-executed had not been assessed to their respective owners, two of said lots having been assessed to the defendant George H. Baker, whereas they were, at the time of the assessment, the property of his wife, Mary A. Baker, and stood of record in her name.

Evidence was also introduced to the effect that each of these lots included a portion of a lot belonging to an adjacent owner.

The respondents contend that by reason of the assessments thus made the tax deeds are entirely inoperative and confer no title upon the plaintiff. 'Section 3628 of the Political Code provides that the assessor shall assess the property “to the person by whom it was owned or claimed, or in whose possession or control it was at 12 O’clock M. of the first Monday of March next preceding; but no mistake in the name of the owner, or supposed owner, of real property shall render the assessment thereof invalid.” The assessment is not against the owner, but is of the property, and that must be correctly described.

The name of the owner of the property assessed is an incidental provision for the sake of convenience, but a failure to give the correct name of the owner is declared by the statute not to impair the assessment. In Lake County v. Silver Bank etc. Min.

Co., 66 Cal. 20, it was said: “The ascertainment of the name of the owner is a matter with respect to which the assessor .has discretionary power, and his judgment or conclusion in regard to it is final, so .far as the validity of the tax is concerned.” The failure of the assessor to describe the land in accordance with the metes and bounds given in the conveyance to the person who is assessed therefor, as well as his including therein land which is owned by another person, is only “a mistake in' the name of the owner” of the lot .assessed, and does not render the assessment invalid.

The cases cited by the respondents arose under a statute which did not contain the above provision •of

section 3628. Each of the parcels described in the other two tax deeds was assessed to unknown owners. Such assessment is expressly authorized by

section 3636 of the Political Code. The provision in subdivision 3 of

section 3650, that the assessor must specify in the assessment-book, under its appropriate head, “City and town lots, naming the city or town and the number of the lot or block, according to the system of numbering of such city or town, and improvements thereon,” was followed in the present assessments. The assessor observed the provisions of this

section by specifying the number of the block according to the official subdivisions of the land in that portion of the city; and it does not appear that there is any “system” in San Francisco for the subdivision of the blocks into lots. In such a case the assessor may assess any subdivisions according to their individual ownership, and Ms determination thereon is not open to review, and if erroneous does not invalidate the assessment. In Cadwalader v.

Nash, 73 Cal. 43, cited by the respondents, it appeared that the pueblo lots had been officially divided into city blocks, and these blocks again subdivided into a large number of lots, which were designated by numbers upon the official map, and that the assessor disregarded these subdivisions and assessed the east half of the pueblo lot as a single parcel.

Section 3778, as it stood at the time of the tax sales in question, provided that the tax collector, before delivering any certificate, must enter in a book kept for that purpose in Ms office a description of the land sold, corresponding with the description in the certificate, and certain other particulars. At the trial herein the defendants offered this book in evidence, and in •one instance the description -therein of the land sold varied from that contained in the certificate and in the tax deed, and was in itself defective, and they contend that by reason thereof the deed was ineffective. A proper construction of the several provisions of the statute fails to sustain this contention.

Section 3776 provides that, after receiving thé amount of the taxes and costs, the collector must make out, in duplicate, a certificate, stating certain matters therein specified; and

section 3777 declares that one copy of the certificate must be delivered to the purchaser, and the other filed in the office of the county recorder. By

section 3779 it is declared that: “On filing the certificate with the county recorder, the lien of the state vests in the purchaser, and is only divested by the payment to him, or to the county treasurer for his use, of the purchase money and fifty per cent thereon.”

Section 3786 declares that: “The matters recited in the certificate of sale must be recited 'in the deed,” and that such deed is primary evidence of certain 'facts; and

section 3787 declares that the deed is “conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed”—one of which is the act of the tax collector in copying the certificate into the book of descriptions. It is not to be held that the rights of the purchaser can be impaired by the failure of the tax collector to make a correct copy of the certificate in this book.

In one of the deeds the land is described as commencing at a point sixty-nine feet easterly from Lyon street, and the complaint describes the land in controversy with the same boundary. Evidence was offered in behalf of the defendant O’Connor, to the effect that the block which embraces the land in controversy is of smaller dimensions than that delineated upon the ■assessor’s map, and that the land claimed by him commences; for its western boundary, at a point fifteen feet 'east of Lyon street.

Whether the land claimed by him is included in the tax deed is to be determined by ascertaining the actual location tof Lyon street. The court made no finding upon this subject, and the record does not contain any evidence from which that fact can be ascertained. The evidence introduced on behalf of the defendants was insufficient to defeat the title of the plaintiff as shown by the tax deeds, and for that reason the court erred in refusing to grant a new trial. The order is reversed. ' Garoutte, J., and Van Dyke, J., concurred. Hearing in Bank denied. Beatty, C.

J., dissented from the order denying a hearing in Bank, and filed the following opinion thereon on the 22d of January, 1901: