ANTHONY C. TULLY et al. v. EMILE BAUER et al., 52 Cal. 487

in support of the point that the publication was sufficient, cited Haskell v. Bartlett, 34 Cal. 284; Chandler v. Spear, 22 Vt. 388; Brown v. Hutchinson, 11 Vt. 569; Clark v. Mowyer, 5 Mich. 465; People v. Seymour, 16 Cal. 332 ; Perry v. Washburn, 12 Cal. 270.) H H. Haight, for the Respondents. By the Coubt : The fifteenth

section of the Revenue Act of 1857, as amended in 1859, (Stats. 1859, p. 348) provides that the delinquent tax list shall be published by one insertion, once a week, for three successive weeks, in a newspaper published in the city and county, or in a supplement to such paper; and it is required that the time and place of commencing the sale of the delinquent property shall be designated in such publication. There is no other mode in which the time of the sale can be designated, or the notice thereof given, than by such publication.

In this case the delinquent list was published in a supplement to the newspaper; and it was proven that the supplement was not circulated co-extensively with the newspaper, but was delivered to subscribers and others within the city and county, and not to those without the city and county. It was not the intent of the statute that the list might be published in a single copy, or a limited number of copies, of a supplement to the newspaper ; but that it might be published in a supplement which was distributed for circulation generally with the newspaper.

The publication in this case does not conform to the statute, and therefore is insufficient as a notice of the time of sale. It is urged that the defendant cannot avail himself of this objection as a defense; but in our opinion the point is not tenable. The twenty-third

section provides that the party resisting the Tax Collector’s deed may show, among other things : “ Fourth, that at a proper time and place the property was not sold,” etc. The proper time for the sale is the time stated in the publication of the delinquent list made in conformity with the statute. The time cannot be fixed in any other mode. Judgment and order affirmed.