ELIZA P. LAWRENCE, Appellant, v. WILLIAM DOOLAN, Administrator, etc., oe Alexander Austin, Deceased, et al., Respondents, 68 Cal. 309

Foote, C. — In the petition for rehearing, the opinion of Department Two, heretofore delivered, is not controverted, in so far as it determines that there was no misjoinder of parties defendant, and that two causes of action were not improperly joined. But it is claimed that the conclusion there arrived at was not sound, in that it declared the sureties of Austin, the tax collector, were responsible for the money received by him, in his official capacity, from Mrs. Lawrence, the plaintiff, and that the statute of limitations did not bar her right of action against them.

In reference to the duties of the tax collector in a matter of this kind, where the action was brought against him alone, this language is used by this court in Randall v. Austin, 46 Cal. 62: “Practically it is a mere deposit of the taxes and assessments by each to await the result of the controversy in the courts, and though it is not expressly provided that the unsuccessful party may withdraw his deposit, we have not the least doubt that such was the intention of the legislature.

It could not have been intended that the taxes and assessments should be twice paid, as we think is perfectly apparent from the whole scope and spirit of the act. “When it appeared from the record of the proceedings of the board that the controversy was ended, the unsuccessful party was entitled to withdraw his deposit. If the consent of the board was necessary before he could withdraw the money, the plaintiff in this case obtained it.

His petition to that effect was granted, and the clerk was directed to return his papers, including the tax collector’s receipts. “This was a sufficient authority to the defendant to refund the money, and would have protected him from further responsibility. “.The rule that voluntary payments cannot be recovered back has no application to the case, nor is there any force in the argument that the action should have been brought against the city and county instead of the tax collector.” In the case in hand, the demurrer admits that the money was never paid over to the city, and if it was his duty so to do, which we do not now decide, the tax collector, nevertheless, by not paying it over, was responsible to the rightful owner.

Are his sureties on his official bond responsible in this action ?

It is alleged in the complaint, and admitted by the demurrer, that Austin entered upon his duties as tax collector on the 23d of November, 1868; that he executed his bond with the defendants, except the city and county of San Francisco, as sureties on that day, and that the conditions of this bond were for the faithful performance and execution of the duties of tax collector of the city and county of San Francisco, as required by law then existing, as well as those which might be required by any law enacted subsequently to the execution of said bond; that the moneys assessed to plaintiff under order 800 were paid to Austin on the third day of March, 1870, for which, on that day, his receipt was given in writing.

As we have seen, the law by which the duty of collecting such assessments was imposed upon Austin, as tax collector, was enacted on the 27th of March, 1868. This was about nine months before he gave his bond with sureties. As we understand the decision of this court in Randall v. Austin, it declared, inter alla, that the latter’s responsibility to a claimant of such moneys as those now in controversy was as tax collector, and not as an individual.

That being so, such cause of action must necessarily flow from the violation of a duty as such officer, for the due and proper performance of which his sureties have obligated themselves to be responsible. Austin, as tax collector, received the plaintiff’s money, and neither paid it to the city and county treasurer nor to her. It was his duty as tax collector, the city and county having absolved him from all responsibility, to have paid it to the plaintiff on her demand.

And it makes' no material difference whether this duty was imposed by the act of 1868, passed before he executed his bond, or under that of 1870, enacted after that occurrence. His sureties undertook to be responsible for the due performance of all such duties as were imposed upon Austin by virtue of his office, whether the same were attached to it, as such, before or after the bond was executed. (People v.

Edwards, 9 Cal. 292.) As to the statute of limitations, we think it very clear that the plaintiff had no right to bring an action for her money until it was judicially determined whether or not she was the person to whom the city would deed the land, and might take the money she had paid to the tax collector and apply it to the purpose contemplated by order No. 800, and the acts of the legislature, supra.

When, in February, 1878, it was thus determined that she had no right to demand of the city a deed to the lands in controversy between her and Ballou, she could then have demanded her money, and her right of action accrued. The present action was commenced January 14, 1880, and was not barred by the statute of limitations. We are of opinion that in this action the sureties were liable to the plaintiff, and concur fully in the opinion of Department Two of this court, that the judgment should be reversed and cause remanded, with directions to overrule the demurrer, with leave to answer. Belcher, C.

O., and Searls, C., concurred.