J. S. BARRETT and F. R. DRAY v. MARTIN AMEREIN, 36 Cal. 322

By the Court, Sawyer, C. J. : This is an action to recover lands to which plaintiffs show a regular title under a patent from the United States. The defendant relies on a title derived from a sale for the taxes of the year one thousand eight hundred and sixty-five, in all respects regular in form, and good if defendant was in a condition to purchase at the sale.

If he was in possession, claiming the land, when the tax was levied and sale made, he was liable to be taxed, and it was his duty to pay the taxes, and, under such circumstances, we have often held, that he could not acquire an outstanding title by neglecting to pay the taxes, allowing the land to be sold, and purchasing at the sale. (McMinn v. Whelan, 27 Cal. 318; Kelsey v. Abbott, 13 Cal. 609; Moss v. Shear, 25 Cal. 38; Coppinger v. Rice, 33 Cal. 425; Bernal v.

Lynch, ante, 135.) There was no paper title shown in defendant, but there was evidence tending to show, that he had been in the occupation of the land, claiming it, since 1862. If his possession was adverse from the beginning, his title would have become perfect against all the world on the 19th of April, 1868—two days after the commencement of the suit—under the Statute of Limitations of 1863, for five years would have then elapsed; and we apprehend from the evidence, that if suit had not been commenced within five years, the plaintiffs would have been met by the plea of the Statute of Limitations.

If he was in possession, claiming the land, he had an interest subject to taxation, as real estate, within the meaning of

section five of the Act of 1861, under which the tax was levied, (Stats. 1861, p. 421;) is the person “having the possession, charge, or control thereof,” and liable to be taxed under

section thirteen, (Stats. 1861, pp. 422, 423;) and one of “the taxable inhabitants,” who, like all owners, should be assessed by name, if known, and, if unknown, one to whom the property should be assessed as “ unknown owners,” under

section twenty. The property seems to have been so assessed in this instance, and the suit and judgment were against “ all unknown owners and claimants and against the land in rem,” in pursuance of the statute. In this State, it is notorious, that a very large number of people occupy lands for years, claiming them without any shadow of paper title; that they improve them and enjoy the revenues derived therefrom, as fully as though they owned the fee; and that not a few do, ultimately, acquire a title in this way, under the Statute of Limitations.

Under such circumstances, the Legislature has seen fit to treat such parties in the occupation and enjoyment of lands, as owners, for the purposes of taxation, and has made them liable to taxation and imposed the legal obligation of payment upon them. Under these circumstances and the state of the evidence, therefore, we think the Court erred in refusing the first and second instructions asked by plaintiff, and in giving the charge expressing the opposite view. Judgment and order denying a new trial reversed, and it is further ordered that the remittitur issue forthwith.