(177 Cal. 710) L. E. WHITE LUMBER CO. v. MENDO- -ALLEGATION-SUFFICIENCY. In suit for recovery of taxes paid by mistake, complaint held radically defective in failing to allege sufficiently that the assessments were illegal, the mere conclusion that plaintiff has no interest, and that the United States has complete title to the land, being insufficient to contradict the allegations showing an assessable interest. 2. TAXATION 62-TAXABLE PROPERTY AND LAND. Taxable property in land is not limited to the title in fee, but may include any usufructuary interest, or even a mere right of possession, it not being necessary that an assessable interest be a complete equitable title. 3. TAXATION 57 -- PROPERTY TAXABLE TITLE IN DISPUTE. That title to land is in dispute does not exempt the land or interests therein from taxation. Department 2. Appeal from Superior Court, Mendocino County; J. Q. White, Judge. Action by the L. E. White Lumber Company against the County of Mendocino. Judgment for defendant, and plaintiff appeals. Affirmed. M. H. Iversen and Preston & Preston, all of Ukiah, for appellant. Hale McCowen, Jr., Dist. Atty., of Ukiah, for respondent. MELVIN, J. Judgment was given against plaintiff after the court had sustained the demurrer to its second amended complaint without leave to amend. the lands. These payments, as it is averred further, were made "under the erroneous and mistaken belief that the said certificates so issued by the United States for the said lands conveyed the equitable title to the plaintiff, and that such lands were then and there taxable to the plaintiff." Plaintiff also denied actual or constructive possession of the lands or any part of them at any time. The pleading further recites that on February 1, 1912, plaintiff filed with the clerk of the supervisors of Mendocino county a verified claim for the refunding of said taxes paid for the fiscal years 1904 to 1910, amounting to $2,062.21; that of this amount the sum of $1,022.36 was paid within three years prior to the filing of plaintiff's claim, and that the board of supervisors of Mendocino county allowed on plaintiff's claim only $209.57 for taxes for the fiscal years 1908, 1909, and 1910 on the lands as to which certificates of selection had been canceled by the Commissioner. By averment of a second cause of action plaintiff set up a payment of $244.40 for the first installment of taxes for the fiscal year 1911; a similar demand for repayment; and an allowance by the board of supervisors for $38.80 for the same reason which caused the other allowance. Both causes of action set out the fact that plaintiff had applied to the proper authorities of the United States for acceptance and approval of the selections excepting the lands regarding which the certificate had been annulled but (to quote directly from the pleading) "the said United States has re fused and now refuses to approve the said selections on any of said lands or to issue patents therefor, on the ground that the said selections are in litigation, and it cannot be determined by the said authorities whether or not they will finally approve said selections or cancel the same." The suit was one for the return of taxes paid during a number of years by plaintiff to the proper authorities of the county of Mendocino. By the plaintiff's pleading it appears that F. A. Hyde and F. A. Hyde & Co., prior to May 8, 1903, selected certain enu[1] The demurerr of defendant pleaded inmerated lands in Mendocino county with forest lieu base under the act of Congress of sufficiency of facts averred and the bar of June 3, 1897, and proper certificates for the section 3804 of the Political Code. Undoubtlands so selected were issued by the govern- edly the bar of the statute was effective ment of the United States; that the claim of against all except the taxes paid within F. A. Hyde and F. A. Hyde & Co. to a por- three years of the filing of the verified claim tion of said land was canceled by order of with the board of supervisors. Section 3804, the Commissioner of the General Land Office Pol. Code. But we need not discuss the efof the United States, and homestead entries fect of this limitation because the complaint were allowed on said portion by persons oth- is radically defective in its falure to allege er than the original selectors and the plain-sufficiently that the assessments were illegal. tiff; that the parts of the lands included in It is true that the pleading set forth a statethe original selection, certificates to whichment that plaintiff has never been in the acwere not canceled by the Commissioner's or- tual or constructive possession of the lands, der, have been involved in litigation ever since the original selection was made; that plaintiff acquired, and since the 8th of May, 1903, has held, an undivided two-thirds interest in all of the title of every sort acquired by the original selectors; and that from and including the year 1904 to and including the year 1910 plaintiff was assessed for and paid taxes on an undivided two-thirds interest in and that the property belongs to the United States of America. It also contains averments that the land is in litigation, and that the proper authorities refused to approve the selections or to issue patents for any of the lands. But this is not equivalent to a statement of facts showing that plaintiff is without assessable interest in the property. [2] Undoubtedly the lands of the govern For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment are exempt from the burdens of taxation, and while it is true that the pleading before us contains an averment of a conclusion that the general government owns the property it also sets forth the issuance by the government of "proper certificates" for the selected lands to plaintiff's predecessors. The sort of property in land which is taxable under our laws is not limited to the title in fee. It may include any usufructuary interest or even a mere right of possession. State of California v. Moore, 12 Cal. 56. An assessable interest need not be a complete equitable title. By the act of June 4, 1897, under which the selections were made by plaintiff's predecessors the United States government made a continuing offer to exchange lands outside of a forest reservation for those held by settlers within a reservation. The exchange could be initiated by the surrender to the land office on the part of the settler of his patent or deed to the base land and the selection of realty in lieu of that relinquished. Roughton v. Knight, 156 Cal. 123, 103 Pac. 844. Respondent's theory is that in all of the selections made by appellant in which it met the terms of the offer to trade it acquired an equitable interest subject to assessment. In this behalf respondent quotes as follows from Witherspoon v. Duncan, 71 U. S. (4 Wall.) 210-218, 18 L. Ed. 339: "The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser, who has the equitable title." We quite agree with respondent that under this authority appellant has pleaded an assessable interest, and has failed to contradict such allegation by the mere conclusion set forth in the complaint that it has no interest, and that the United States has complete title to the assessed property. The case of Witherspoon v. Duncan, cited above, is in many of its aspects similar to the one at bar. In that case the Supreme Court of the United States was considering an effort made to set aside a tax title arising from a failure to pay taxes levied by the state of Arkansas after a certificate of entry had been issued by the Land Office, but before a patent had been obtained. The Supreme Court held that after a certificate of entry had been obtained the lands could in no just sense be regarded as public because if they were subject to sale the government had no power to revoke the entry and withhold the patent. In the opinion of the court delivered by Mr. Justice Davis the following language was used: "As the patent emanates directly from the President, it necessarily happens that years elapse, before, in the regular course of business in the General Land Office, it can issue; and if time, it would work a great hardship to the state; for the purchaser, as soon as he gets his tary interest, can take possession, and make certificate of entry, is protected in his proprievaluable and lasting improvements, which it would be difficult to separate from the freehold for the purpose of taxation. If it was the purpose of the acts of Congress, by which the new states were admitted into the Union, to prohibit taxation until the patent was granted, the national authority would never have suffered, of the power to tax on the basis of the original without questioning it, the universal exercise entry.' Summing up, the learned justice said: "The power to tax exists as soon as the ownership is changed, and this is effected when the entry is made on the terms and in the modes allowed by law." [3] The complaint contains the allegation that the lands are and ever since the selections of its predecessors have been in litigation, but there is no allegation regarding the details nor the merits of the controversy or controversies involved. The mere fact that the title is in dispute does not exempt the land from taxation. Herrick v. Sargent, 140 Iowa, 590, 117 N. W. 751, 132 Am. St. Rep. 281; Northern Pacific Railroad Co. v. Patterson, 154 U. S. 130-133, 14 Sup. Ct. 977, 978 (38 L. Ed. 934). In the latter case the rule was thus stated by Mr. Chief Justice Fuller, who delivered the court's opinion: "If the legal or equitable title to the lands or any of them was in the plaintiff, then it was liable for the taxes on all or some of them, and the mere fact that the title might be in controversy would not appear in itself to furnish sufficient reason why plaintiff should not determine whether the lands or some of them were worth paying taxes on or not." These authorities sufficiently support the ruling of the court in sustaining the demurrer. It is true that according to the authority of Durham v. Hussman, 88 Iowa, 29, 55 N. W. 11, which on appeal is reported in 165 U. S., at page 144, 17 Sup. Ct. 253, 41 L. Ed. 664, an intending purchaser from the government does not acquire an equitable interest in property until he has done all that is required of him. But in the present case there is no pleading to the effect that the holder of the certificate issued by the Land Office has not complied with all the legal requirements entitling it to a patent. In Durham v. Hussman it appeared that the Commissioner of the Land Office had actually sus pended all proceedings under the entry, and had canceled the bounty land warrant under which the location had been made before the levy of the state tax upon which the unsuc cessful litigant sought to found his alleged tax title. Appellant cites Allen v. Pedro, 136 Cal. 1, 68 Pac. 99, Roberts v. Gebhart, 104 Cal. 67, 37 Pac. 782, and Slade v. County of Butte, 14 Cal. App. 453, 112 Pac. 485, to support the contention that until the Secretary of the Interior approves the selection, the legal and equitable title are both in the United States and that in each of these cases the certificates of a writ will not issue where it would be of no purchase were issued by the state of Call- benefit to the applicant, or to enforce a mere fornia for lands which belonged to the Unit-abstract right, unattended by any substantial ed States, but which had never been con- benefit to the petitioner. Gay v. Torrance, firmed to the state. In the case at bar the 145 Cal. 147, 78 Pac. 540. The only appeal certificates had been issued by the repre- as to which it is suggested that the bill of sentative of the general government, the exceptions could be used is an alleged appeal holder of the fee. from a final judgment. The learned judge The case of Cosmos Exploration Co. v. of the trial court concluded that this attemptGray Eagle Oil Co., 190 U. S. 301, 23 Sup. Ct. ed appeal was not taken within the time al692, 47 L. Ed. 1064, is not in point to estab-lowed by law, and we are satisfied that he lish the asserted principle that no taxable ti- was right in so concluding. The final judgtle nor equity arises until the application of ment was entered December 16, 1916. An the selector of lieu lands has been confirmed order denying petitioner's motion for a new by the Secretary of the Interior. It was trial was entered February 10, 1917. The merely held in that case that the complain-time for appeal from the judgment was limant did not have a complete equitable title ited to 30 days after entry in the trial court which would entitle it to maintain an action of such order of denial. Section 939, Code enjoining another from interfering with its Civ. Proc. The appeal was not taken until possession of the land involved. March 13, 1917, which was one day too late. Petitioner's claim is that the time was further extended by the pendency of a motion made under sections 663 and 663a of the Code of Civil Procedure for the setting aside of the judgment and the entry of another Our conclusion, based upon the foregoing discussion, renders unnecessary any analysis of the other questions raised in the briefs. The judgment is affirmed. We concur: WILBUR, J.; VICTOR E. and different judgment on the findings of fact. SHAW, Judge pro tem. (177 Cal. 719) SPOTTON v. SUPERIOR COURT et al. (S. F. 8674.) (Supreme Court of California. March 13, 1918.) 1. APPEAL AND ERROR 345(1)—MANDAMUS 10-MANDATE TO COMPEL SETTLEMENT OF BILL OF EXCEPTIONS. Where judgment was entered December 16th and order denying defendant's motion for a new trial entered February 10th following, an appeal, taken March 13th, from final judgment came too late, in view of Code Civ. Proc. § 939, requiring appeal within 30 days after entry of order denying a motion for new trial, and mandate will not issue to compel settlement of bill of exceptions to be used on such appeal, as such writ will not issue to enforce a mere abstract right which would be of no benefit to applicant. 2. APPEAL AND ERROR 346(1)—EXTENSION OF TIME FOR APPEAL-PENDENCY OF MOTION. The pendency of a motion under Code Civ. Proc. 663, 663a, for setting aside judgment and entering another and different judgment on findings of fact would not extend the time for appeal from judgment. In Bank. Application for writ of mandate by E. K. Spotton against the Superior Court, etc., to compel settlement of a bill of exceptions to be used on appeal from final judgment. Denied. C. R. Baender, of San Francisco, for petitioner. This motion was not decided until some time in March, 1917. Such a motion is not a proceeding on motion for new trial, and the pendency of such a motion is altogether immaterial in determining the time within which an appeal must be taken. That question is determined in clear and unambiguous terms by the provisions of section 939 of the Code of Civil Procedure, and the proceeding on motion for new trial therein referred to is the proceeding covered by sections 656 to 660 of the Code of Civil Procedure. Our law gives a separate appeal from an order made by the court on the motion referred to in sections 663 and 663a of the Code of Civil Procedure. The application for a writ of mandate is denied. (177 Cal. 721) Ex parte HORR. (Cr. 2148.) (Supreme Court of California. March 14, 1918.) 1. CRIMINAL LAW 1011-HABEAS CORPUS 30(1) CERTIORARI-GROUNDS-ERRORS. Any error in refusing transfer to another department of the court for bias and prejudice of the judge is not a matter going to the court's jurisdiction, so as to allow its consideration on application for writ of habeas corpus or certic rari. 2. CRIMINAL LAW 1011-HABEAS CORPUS In Bank. Application by Alexander Horr for writs of habeas corpus and certiorari. Denied. PER CURIAM. [1, 2] This is an application for a writ of mandate to compel the settlement of a bill of exceptions to be used on appeal from final judgment. Unless there is an appeal on which the bill of exceptions can be used, mandate will not issue, for such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 171 P.-51 Charlotte F. Jones, of Seattle, Wash., for petitioner. PER CURIAM. In our opinion the petition does not show any good ground for the issuance of either a writ of habeas corpus or a writ of certiorari. To our minds the ordinance of the city and county of San Francisco here involved is not violative of any provision of either state or federal Constitution and is a valid enactment. "You are hereby authorized to procure this loan from any person or company and apply so to remove any existing incumbrances, and to much of the proceeds of said loan as is needed pay for the certificate of title, recording fees, insurance, or any necessary expenses in closing the loan." arranged with Thereafter Engelman Charles Frey to advance $1,200 on a note for $1,250, supported by a mortgage. Such a [1, 2] The complaint in the police court stated facts sufficiently showing a public of-note and mortgage were executed by plainfense in view of the provisions of said ordinance. The claim that the police court erred in refusing to grant a transfer to another department of that court because of the alleged bias and prejudice of the police judge is not a matter going to the jurisdiction of the court and cannot be considered on this application. The claim that the evidence given on the trial was not sufficient to prove the charge is also a matter not available to petitioner on such an application as this, and the same appears to be true as to all other claims made in support of the application. The application is denied. (177 Cal. 697) VEREIN et ux. v. FREY. (Supreme Court of California. 1. PRINCIPAL AND AGENT (L. A. 4174.) March 12, 1918.) 23(1) EVIDENCE OF RELATION-SUFFICIENCY. In action to cancel contract for loan, evidence held to support finding that person negotiating it was agent of plaintiffs, and not defendant. 2. TRIAL ISSUES. 395(1)-FINDINGS-RESPONSE TO construction on tiffs, delivered to Engelman and by him [1] Plaintiffs attack the finding that in all matters relating to the loan and receiving payment thereon Engelman acted as the duly authorized agent of plaintiffs. There can be no doubt of the correctness of this finding. In addition to the writing quoted above, there was testimony on the part of the plaintiff A. Verein that he never saw defendant during knew Engelman was handling the money. the progress of the building and that he True, he says, he objected to that arrangement, yet confessedly the $500, for repayment of which he admits himself bound, was paid by Engelman in settling bills of those who Superior had performed labor and furnished materiCourt, San Diego County; C. N. Andrews, als for the building on the land of plaintiffs. Judge. Not only the writing, but the entire course of Action by A. Verein and wife against conduct on the part of Verein supported the Charles Frey. From a judgment for defend-court's finding and conclusion regarding Enant, and order denying new trial, plaintiffs gelman's agency. appeal. Affirmed. In action to cancel contract for loan procured through an agent, a finding that he was plaintiff's agent was equivalent to finding that he was not defendant's agent. Department 2. Appeal from Bischoff & Thompson, of Escondido, for appellants. Theron Stevens and J. R. Gilliland, both of San Diego, for respondent. a MELVIN, J. Plaintiffs appeal from judgment and from an order denying their motion for a new trial. There is very little difference between the parties to the litigation regarding the facts. Plaintiffs applied to one Engelman, a loan agent, for money to erect a house on their land. The application was in writing and contained, among other things, the following language: [2] Complaint is made by appellants that there was no finding by the court responsive to the evidence tending to show that Engelman was the agent of Frey. No such issue was raised by the pleading, but, if it had been raised, no finding on that matter would have been necessary, because the court found on evidence duly supporting such finding that Engelman was the agent of plaintiffsan equivalent to a finding that he was not Frey's agent. The judgment and order are affirmed. We concur: WILBUR, J.; VICTOR E. SHAW, Judge pro tem. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (36 Cal. App. 44) PANTER v. NATIONAL SURETY CO. (Civ. 2111.) (District Court of Appeal, First District, California. Jan. 25, 1918. Rehearing Denied by Supreme Court March 25, 1918.) 1. PLEADING 129 (2)-ADMISSION FAILURE TO DENY. In an action on a surety company's bond executed to protect plaintiff against the damages resulting from an injunction which had been issued in a prior action against him, defendant's failure to deny the allegation that the bond was such an undertaking was an admission that it was given in consideration of a pre-existing injunction, and such fact need not be further proved or found. 2. PLEADING 310-MATTERS OF SUBSTANCE -NECESSITY TO ALLEGE-EXHIBIT. Recital of the consideration in the bond in suit, though the bond was attached to and made part of the complaint, did not, as matter of pleading, control the specific allegations of the complaint as to the actual consideration for the bond, since matters of substance must be alleged directly, not by way of recital or reference, much less by exhibits merely attached to the pleading. 3. PLEADING 406(7)- ESSENTIAL ALLEGATIONS-RECITALS OF EXHIBIT. In the absence of a special demurrer for uncertainty, direct and essential allegations in a complaint will not be modified, controlled, or defeated by the recitals of an instrument attached to the complaint. 4. INJUNCTION 252 (4) PENSES IN SUIT-STATUTE. INTEREST-EX Under Civ. Code, § 3287, providing that every person entitled to recover damages certain or capable of being made certain by calculation, etc., is entitled to recover interest from the day the right to recover is vested in him, in an action on a bond to secure plaintiff against damages resulting from an injunction issued in a prior action against him, judgment for plaintiff properly provided for interest on allowances for counsel fees and expenses incidental and necessary to plaintiff's successful endeavor to secure dissolution of the injunction; the several items of expense not being uncertain or incapable of being made certain by calculation. Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge. Action by Frank Panter against the National Surety Company. From a judgment for plaintiff, defendant appeals. Affirmed. Metson, Drew & McKenzie and R. G. Hudson, all of San Francisco, for appellant. Morrison, Dunne & Brobeck, of San Francisco (R. L. McWilliams, of Burlingame, of counsel), for respondent. LENNON, P. J. This is an appeal from a judgment in favor of plaintiff in an action to recover damages upon a bond given by the defendant National Surety Company. The facts of the case briefly stated are these: On December 21, 1910, a prior action was instituted in the superior court of Mendocino county by one Jacobs against Frank Panter, the plaintiff here, and others, in which action, on the said 21st day of December, 1910, the court issued an order of injunction, restraining the defendants there from the commission of certain acts, and prohibiting the Crocker National Bank from paying or crediting to the account of Frank Panter, the plaintiff here, any moneys or stock then in its hands or thereafter to be received by virtue of a certain contract. Thereafter, on January 11, 1911, the defendant National Surety Company executed its undertaking in the sum of $2,500, which purported to be obligated to protect the plaintiff here from any damages resulting to him by reason of the issuance of an injunction in that action. After the service of the injunction on the bank, Panter demanded of it payment to him of the sum of $35,544.57, the amount which it had in its possession credited to his account. In compliance with the writ the bank refused payment. The cause was transferred to the superior court of Shasta county, and the injunction of December 21, 1910, was there dissolved on April 4, 1911. In the present action upon the bond, judgment was rendered and entered for plaintiff Frank Panter in the sum of $1,576.05, being $750 paid to counsel for securing a dissolution of the injunction, $252.43 interest on that sum from date of its payment to January 27, 1916, at 7 per cent., $36.20 expenses of Panter for two trips necessary and incidental to the securing of the dissolution of the writ, and $12.19 interest thereon, and the sum of $525.23 as the reasonable value of the use of the sum of $32,544.57 from January 12, 1911, to April 4, 1911. The principal point presented upon this appeal is that the bond in suit was without consideration. This contention is based on recitals in the bond, which was attached to and made a part of the plaintiff's amended complaint. The recitals referred to are that: "Whereas the above-named plaintiff had commenced or is about to commence an action * against the above-named defendants, and is about to apply for an injunction in said Now, action against said defendants: * * therefore, the undersigned, National Surety Company, a corporation, in consideration of the premises, and of the issuing of said injunction, does hereby undertake in the sum of $2,500 and promise to the effect that in case said injunction shall issue, the said plaintiff will pay to the said parties enjoined, such damages, not exceeding the sum of $2,500 as such parties sustain by reason of said injuncmay tion. * The bond was approved and filed on the 11th day of January, 1911, three weeks after the issuance of the injunction out of which It is contended the alleged damages arose. that the undertaking, having been given after the issuance of the writ, could not, in the face of the recitals above quoted, be considered as having been given in consideration of the issuance of the writ, and that, inasmuch as the record does not show that any writ was subsequently issued, it must be held that the undertaking was executed without consideration. [1] This contention is answered by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |