People v. Mariposa Co. , 31 Cal. 196 ( 1866 )

By the Court, Sharper, J.:

This is an action to recover delinquent taxes. The suit is against the real estate and improvements, upon which the taxes are alleged to have been assessed, and in personam against the company to which the property is alleged to belong. Judgment was entered against the defendants by default.

There is a number of grounds upon which it is claimed that the judgment should be reversed, but it will be necessary to consider but one of them. It is urged that the complaint is fatally defective for the reason that it cannot “be ascertained therefrom what land and improvements are intended.” (Acts 1861, Sec. 40, p. 419.) The complaint commences with a description of a larger tract, of which the tract alleged to be subject to the tax lien is put as a parcel. The larger tract is described as “ Las Mariposas, or Fremont Grant, lying and being in the County of Mariposaand it is further described by metes and bounds. It is averred further that the land subject to the lien is the larger tract “ less the town lots sold in Bear Valley and Mariposa,” and the difference between the two quantities is laid at forty-three thousand acres—on which area the improvements affected by the decree are alleged to be situated.

The question of the sufficiency of the description is settled, as we consider, by the decision in People v. Pico, 20 Cal. 595. The land was described in the complaint in that action as “ unsold portions of eleven leagues of land known as Los Mokelamos.” The distinction between the two descriptions is merely verbal. In both there is a larger quantity stated and described with proper precision; in both an attempt is made to get at the taxed lands by taking from the larger tract a less quantity—described expressly in the case at bar as “ sold,” etc., and described in the case cited by the same idea, so to speak, expressed indirectly. The phrase “ unsold portions of Los Mokelamos” is in effect a statement of the residue of the larger area, to be found by deducting therefrom the parcels that had been “ sold.” The distinction is between stating the difference between two quantities directly, and giving the quantities and leaving the difference to inquiry or calculation—a distinction more nominal than real.

In People v. Pico the quantity put as subtrahend may have fallen anywhere within the limits of “Los Mokelamos;” in this case, however, the quantity standing in that stead is somewhere within the limits of “Bear Valley” and “Mariposa,” those localities being only part of “Las Mariposas.” Although the smaller quantity is in this case coufhied within narrower limits than it was in the case cited, still no clue is given to its exact situs within those limits, and therefore its position in space can never be ascertained.

But it is claimed for the people that the defect in question is cured by the Act of 1866, (Acts 1866, p. 795.) But that Act was passed for the purpose of legalizing defective assessments, and not for the purpose of legalizing defective complaints in pending actions. Further, while the one purpose is doubtless within the legislative reach, the other is as clearly beyond it.

Under the fortieth section of the Revenue Act of 1861, it is not necessary that the description of the lands, etc., in the complaint in a suit like the present, should follow the description given in the assessment roll, and we therefore have no means of knowing what that description is. It may be good independently of the Act of 1866, or there may be no attempt at description, or, if one was attempted, it may be so unreal and illusory that no amount of legislative indorsement could give to it any available meaning—or none, at least, so far as proceedings in rem are concerned; or the description, though imperfect as a guide to the land intended to be assessed, may be one that cannot be helped out by avermpnt under the Act of 1866, for the want of extrinsic facts capable of proof. But, however that may be, it is apparent that the Act was not passed for the healing of defective pleadings in tax suits pending at its passage or to be brought thereafter. It is well that Courts should have power to amend defective pleadings, but it would be of dangerous consequence if the Legislature, having the power, should legalize existing pleadings, substantially defective, without first requiring them to be amended ; and should a prospective operation also be given to such an Act, all pleadings would be abolished in effect, and the only documents necessary to* a final roll would be a verdict and judgment. And they even might be dropped out by carrying the maxim of ut res magis valeat quam pereat a step further— nothing being made necessary to a transfer of property in invitum but an execution and officer’s return thereon.

The judgment is reversed and cause remanded, with leave to plaintiffs to amend complaint.