Telonis v. Staley , 104 Utah 537 ( 1943 )

I dissent. I concur in that part of the opinion holding that mineral rights and surface rights need not be separately taxed and sold when ownership of both reside in the same person. My reasons for so holding are set forth in the opinion in this case on the former hearing, reported in 106 P.2d 163, 104 Utah 505. I dissent from what is said in the prevailing opinion of Mr. Justice McDONOUGH as to points 2 and 3 with respect to the tax sale certificates and the auditor's authentication of the assessment roll. It seems to me the court is turning the clock of judicial interpretation and of legislative enactments back several decades to the rule announced in Asper v. Moon,24 Utah 241, 67 P. 409, unmindful and oblivious of the fact that such decision was rendered under a statute materially different from those which control today. Hatch v. Edwards, 72 Utah 113,269 P. 138. It seems the inevitable result of the prevailing opinion will be that any one assaulting a tax title, or a tax sale need only come in and utter the famed pugilistic yell, "we've been robbed" to have the proceedings set aside and the sale nullified. I always thought is was elemental that a plaintiff, in a tax sale suit as well as in any other action at law, is only entitled to recover when a wrong has been done him, against which he seeks redress; and can recover only for the things wherein he has been wronged. Plaintiff here was not the tax title claimant, nor was he the owner of the property involved, at the time or before the tax sale, the auditor's tax deed or the private sale by the county. He claimed under a quitclaim deed from the Union Pacific Railroad Company, the record owner at the time of the tax levy and the sale proceedings. He then instituted this action against the defendants, purchasers from the county. The only issue is whether plaintiff, or the party from whom he claims title was deprived of title to the property by the errors of tax officials which are pointed out and made an issue. Since the opinion resolves point 1 against plaintiff, that the assignment was properly made, and there is no claim that there was any error in the levy, noticing advertisement or sale for delinquency, and it is admitted the taxes were never paid or tendered, and no redemption was ever made or offered, I cannot see where there is any issue before the court. The other matters discussed in the opinion have to do with alleged informalities on the face of certain instruments. No claim is made that any of the proceedings were irregular or invalid, but merely that certain recitals in some records are surplusage and incomplete. It is not contended, however, that the proper acts were not all properly performed nor that plaintiff or the party from whom he claimed were or could be in any way misled, harmed, or prejudiced by the seeming defects in the record of which complaint is made. While he does not question the validity of the tax or any of the proceedings connected therewith, he has not offered to pay them, nor to redeem from the sale, nor does he now offer or desire to do so. Not having offered, and not now offering to do so, should he be heard to complain that he should have the privilige while still asserting he would not avail himself of it. Deseret Irr. Co. v. Bishop,92 Utah 220, 67 P.2d 210.

Plaintiff now contends, and the opinion holds that the tax title fails because (a) the recitals in the certificate of sale do not show the year for which the sale was made. Assuming for the argument that such defects would render void the certificate of sale, it does not help the cause of plaintiff. The certificate of sale is not jurisdictional — neither the right to sell nor the conveyance of title is dependent upon the certificate. Bruno v.Madison, 38 Utah 485, 113 P. 1030, Ann. Cas. 1913B, 584;Armstrong v. Jarron, 21 Idaho 747, 125 P. 170; Bacon v.Rice, 14 Idaho 107, 93 P. 511. The tax sale is made by the treasurer when the tax remains delinquent and unpaid at sale day. Conceding the regularity of proceedings up to that point, that sale as and when made places the owner from that moment forth as limited to the right of redemption. He has no interest in the certificate of sale; it can confer no rights on him; it is given to the county and filed in the county recorder's office as notice to all the world that the property has been sold for taxes, and any one acquiring an interest therein through the owner takes subject to the county's claims. Furthermore it is reasonably clear that the certificate of sale is not intended as the only evidence of the sale. The treasurer must make and keep in his office a record of sales, showing a description of the property, the amount of taxes and costs, and other proceedings incident to the collection of taxes and sale for nonpayment. R.S.U. 1933, Sec. 80-10-33. The certificate of sale is a copy or memorandum of sale filed with the recorder to give notice to the world. Should there be a discrepancy between the Record of Sales and the recitals in the certificate the record of sale will control.Bruno v. Madison, supra; Clark v. Thompson, 37 Iowa 536; Kneeland v. Hull, 116 Mich. 55, 74 N.W. 300. Other states under statutes like ours have held in accordance with these views. See Otoe County v. Brown, 16 Neb. 394,20 N.W. 274; Id., 16 Neb. 398, 20 N.W. 641. The Supreme Court of Michigan in Muirhead v. Sands, 111 Mich. 487, 491, 69 N.W. 826, 828, held that the "owner cannot be concerned as to the form of the certificate given to the purchaser, nor would it be material if no certificate was given at all." And under a statute similar to ours, the Oklahoma court in Pentecost v. Stiles, 5 Okla. 500,49 P. 921, 923, held "the tax sale, so far as the owner of the property is concerned, may be as valid without this certificate as with it." The certificate of sale is not a muniment of title. The legal title is divested and the property conveyed to the county by the auditor's tax deed at the end of the redemption period, and by the express provisions of the statute that deed is made prima facie evidence of the regularity of all matters therein recited. Sec. 80-10-66, R.S.U. 1933, being Sections 6030 and 6055 C.L.U. 1917, including the fact that a certificate of sale had been issued, which issuance is prima facie evidence of the regularity of all proceedings up to that time. Sec. 80-10-35, R.S.U. 1933. The certificate of sale involved in this case was very substantially in the form prescribed by the statute, Sec. 80-10-35, R.S.U. 1933, being Sec. 6021, Laws of Utah, 1921, p. 382, which section further makes the certificate prima facie evidence of the regularity of all proceedings connected with the assessment, notice, equalization, levies, advertisement and sale of the property, and the burden of showing an irregularity in the proceedings resulting in the sale is upon him who asserts it.Wilson v. Locke, 18 Idaho 582, 111 P. 247, McGowan v.Elder, 19 Idaho 153, 113 P. 102. No attempt was made by plaintiff to show any irregularity in any of the proceedings leading up to and resulting in the sale, nor is it claimed there were any such. So the fact that a certificate was issued establishes prima facie the regularity of all proceedings up to and including the sale. Plaintiff argues that the recital in the certificate is prima facie evidence that the land was improperly assessed for city taxes, but the statute does not so provide. It does not make the certificate evidence of any recitals therein, but makes it prima facie evidence of the regularity of prior proceedings, that is of the assessment, levies, and even notices and equalization which are not recited therein; and the burden of showingirregularities is on him who asserts it. This cannot be shown or inferred from recitals in the certificate. This will appear more conclusively from what is said in the discussion of the next question.

Is the auditor's tax deed void because it contains recitals that the certificate shows the land was sold for taxes for 1932, when the certificate does not show which year; and also that the certificate contains a recital that the property was assessed and sold, for city and city school taxes to which it is not subject, along with other taxes to which it was subject? Sec. 80-10-66 provides that the auditor's tax deed is prima facie evidence of the facts "recited therein." Herein it differs from the certificate of sale, which is not evidence of the things therein recited, but of certain facts enumerated by the statute. Sec. 80-10-35. These sections, 80-10-35 and 80-10-66, are rules of evidence and provide that the issuance of a certificate of sale and the recitals in the deed shall be prima facie evidence of the matters indicated by the statute. No further proof is required from the person relying upon the tax sale or title to show the regularity of all proceedings up to and including the sale than the fact that the certificate of sale was issued. So no further proof is required of such person, as to any matters recited in the auditor's deed, than the deed itself. While such matters are established prima facie by the evidence indicated, it is not the only evidence and may be rebutted. So, although the deed contained a recital that the lands were assessed for city and city school taxes, such recital was rebutted by the evidence adduced by plaintiff himself when he put in evidence as part of his case in chief Exhibits D, G, and F, being the assessment, apportionment by the State Tax Commission, the County Assessment Roll, and the County Tax Computation on this property, respectively showing it was not assessed as within any city or town, and that no city or city school or town tax was figured or computed or levied against it. So when plaintiff himself resorted to the records, put them in evidence over defendants' objections, and thus conclusively showed that the lands were not assessed for city and city school taxes; and upon the evidence so put in by him, the court found the lands were not so assessed — plaintiff cannot now avail himself of such erroneous recital in the instrument. There is no claim that there was any irregularity in any of the proceedings, but only that the instruments (the certificate and deed), are void for surplusage in their contents. All the tax proceedings being valid, the property having been sold, and the redemption period having expired, plaintiff is simply out. White Pine Mfg.Co. v. Morey, 19 Idaho 49, 112 P. 674.

But there is another conclusive reason why plaintiff should fail in this action. Even assuming the case most favorable to plaintiff, to wit; that there are informalities and irregularities in the certificate of sale and in the auditor's tax deed, and also assuming that the lands were overtaxed because some city and city school taxes had been added into the aggregate amount of tax, there are statutory provisions governing the question. Sec. 80-11-7, R.S.U. 1933, reads:

"No assessment or act relating to assessment orcollection of taxes is illegal on account of informality or because the same was not completed within the time required by law." (Italics added.)

And Sec. 80-10-38 provides:

"Whenever property is sold for the nonpayment of delinquent taxes, and the assessment is valid in part and void as toexcess, the sale must not for that cause be deemed invalid, nor shall any grant subsequently made thereunder be held insufficient to pass a title to the grantee, unless the owner of the property or his agent, not less than six days before the time at which the property is advertised to be sold, delivers to the treasurer a protest in writing signed by the owner or agent, specifying the portion of the tax which he claims to be invalid, and the ground upon which such claim is based." (Italics added.)

If therefore there was charged against this property an excess tax (city and city school) that does not affect the validity of the sale or defendants' title, plaintiff not having complied with or made any effort to comply with the last-quoted section. This is in keeping with the past decisions of this court. As pointed out by Mr. Justice Cherry, speaking for the court in Hatch v.Edwards, 72 Utah 113, 269 P. 138, the statutes now in force are materially different from those which controlled in Wall v.Kaighn, 45 Utah 244, 144 P. 1100; Lawrence v. Murphy,45 Utah 572, 147 P. 903; and Thompson v. Taylor, 61 Utah 164,211 P. 696; Fisher v. Davis, 77 Utah 81, 291 P. 493; Asper v. Moon, 24 Utah 241, 67 P. 409; the cases of Moon v. SaltLake County, 27 Utah 435, 76 P. 222; Jungk v. Snyder,28 Utah 1, 78 P. 168; Olsen v. Bagley, 10 Utah 492, 37 P. 739;Tintic Undine Mining Co. v. Ercanbrack, 93 Utah 561,74 P.2d 1184; Burton v. Hoover, 93 Utah 498, 74 P. 652, were all cases where the errors were made in the assessment and the attack was directed at the assessment and levy, not the form of the instruments executed. Even in Wall v. Kaighn and the case following it, under the old statute the attack was made on the sale or proceeding prior thereto, and the deeds were merely used as evidentiary of the proceedings which had been taken at or prior to the sale under the statute that the recitals in a deed are prima facie evidence of the things therein recited. I know of no case which has held a tax sale void merely because of informalities or irregularities in the auditor's tax deed.

Now to consider plaintiff's point 3(c); that the sale and tax proceedings must fail because of the claimed failure of the auditor to attach to the assessment roll an affidavit as required by Section 80-8-7, R.S.U. 1933.

It is argued that such section must be literally complied with or the assessment and all subsequent proceedings are utterly void. It has even been held that a variance in the wording of the affidavit is fatal. In Richardson v. Howard, 23 S.D. 86,120 N.W. 768, 769, it is held that the assessment and all proceedings fail because the affidavit there subscribed used the words "full and true value" while the statutory form reads "full and truecash value." Laws 1899, c. 40, p. 38, § 3. And in Friedner v.Galveston, Tex. Civ. App. 229 S.W. 950, the assessor had signed the statutory form of certification, but it lacked the seal of the notary. Under such rule what would happen in this state where the statutory form of affidavit requires the auditor to swear in affidavit form that "I received the accompanying assessment roll * * * from the assessor"? Section 80-5-30 requires the assessor to deliver the rolls to the county treasurer. Section 80-10-12 requires the treasurer to deliver the book to the auditor. If therefore the auditor must swear he received them from the assessor he would be required to swear to a false affidavit and commit perjury. United States v.Klink, D.C., 3 F. Supp. 208. And under the cases referred to above the affidavit must be in the exact language of the statute or it has no validity. It certainly never was the intention of the Legislature to make the validity of tax proceedings depend upon a false affidavit. The section under discussion, 80-8-7, is listed among the "County Auditors' Duties." There is no statute providing that the failure of the auditor to swear to the affidavit (which would be false in form and substance) shall nullify any assessment or other proceeding. But Section 80-5-30 is very significant in this connection. It provides that the assessor must make and subscribe an affidavit to the assessment roll as therein set forth. It then provides that he shall not be paid or draw any compensation until the affidavit is subscribed. The statute then reads:

"A failure to make or subscribe such affidavit, or anyaffidavit, will not in any manner affect the validity of the assessment." (Italics added.)

The statement "or any affidavit," certainly cannot refer to affidavits by the assessor because there is no provision for the assessor making any affidavit other than the one provided in the section itself. Clearly it must refer to other affidavits required by law to be made relative to the tax rolls and records, because it states that the failure to make any affidavit "will not in any manner affect the validity of the assessment." Note also that the auditor is required to make another affidavit as to the correctness of the assessment roll after equalization has been had, which however is not attached to the roll. Section 80-7-9, R.S.U. 1933. It would seem, however, it might be evidence of the correctness and authenticity of the figures on the rolls.

We have a statute, Section 80-11-7, R.S.S. 1933, providing that "no assessment or act relating to assessment or collection of taxes is illegal on account of informality or because the same was not completed" in time. Idaho has sections like our 80-8-7 and our 80-11-7, which have been construed by the Supreme Court of that state a number of times. In the case of Stewart v.White, 19 Idaho 60, 112 P. 677, 678, the Idaho court followed the rule announced in Bacon v. Rice, and cited the case ofCouts v. Cornell, 147 Cal. 560, 82 P. 194, 109 Am. St. Rep. 168, and said:

"It was held, in effect, * * * that there is an enforceable obligation to pay a general annual tax, which in a sense is legal as well as moral; and a lien therefor is established by law irrespective of the irregularities or informalities of the assessment. Even if there were some informalities in the assessment or collection of the taxes upon said land, those were all cured by the provisions of section 1788, Rev. Codes, which section is as follows: `No assessment, or act relating to assessment, or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law.'"

And in Armstrong v. Jarron, supra, 21 Idaho 747,125 P. 174, the same court said:

"In finding No. 5 the court finds that the assessor of said county failed to append the certificate required by section 1727 of the Rev. Codes or any certificate of any kind whatsoever. Section 1727, Rev. Codes, provides: `On or before the first day of July in each year the assessor must complete his assessment roll. He and his deputies must take and subscribe an affidavit in the assessment book, to be substantially as follows.' Then follows the oath in which the assessor or his deputy verifies that he has made diligent inquiry and examination to ascertain all the property within the county subject to assessment, and that the same has been listed and assessed on the assessment book equally and uniformly, and that he has complied with the duties imposed upon him by law. This section is directory and not mandatory and is required for the purpose of making the assessment roll as made by the assessor verify itself as to the truth of the things contained in it, and for the purpose of showing that the assessor has performed his duties. In said section it is provided: `But the failure to take or subscribe such affidavit as required by this section shall not in any manner affect the validity of the assessment. The making of such affidavit is declared, however, to be a duty pertaining to the office of every assessor in this state' — thus showing the intention of the legislature to be that the failure to make the affidavit should not affect the validity of the assessment made by the assessor, but would subject the assessor to certain proceedings for failure to perform his official duties. J.R. Lydon, present clerk of the district court and ex officio auditor and recorder, and who held the same office in 1906, testifies that the affidavit required by sections 1724 and 1727 was not appended to the assessment at the time the assessment book was delivered to the tax collector, but was attached on the 7th day of March, 1911. It was an oversight. He had done it on all previous assessment rolls. This finding of the trial court, therefore, would in no way affect the validity of the tax sale or the tax deed or the appellant's title."

In the case of McGowan v. Elder, 19 Idaho 153, 113 P. 102, this court announces the rule of law in the syllabus, as follows:

"Where property is the subject of taxation, and the assessment has been legally made, and there is a default in the payment of such taxes, and the property is sold at tax sale in accordance with the provisions of the statute, such property cannot thereafter escape taxation through some failure of the officer to perform his duty, unless it has actually misled the party to his injury.

And in White Pine Mfg. Co. v. Morey, supra, 19 Idaho 49,112 P. 675, the court says:

"It has been accordingly held that not all the provisions of the statute with reference to the assessment of property and the sale for taxes are mandatory, but that on the contrary some of those provisions are only directory. * * *

"On the other hand, as above observed, the later authorities are overwhelming to the effect that if the proceeding has been regular and a tax sale has been made in substantial conformity with law that the time within which the landowner may redeem is fixed and limited by the statute, and that after the expiration of such period he has no right of redemption, whether a deed has issued or not."

The Oklahoma Court in Re Rolater et al., 67 Okla. 215,170 P. 507, 508, says:

"The failure of the assessor to verify the assessment roll was not such an irregularity as to render the assessment void. In the case of the Board of Commissioners [of Garfield County] v. Field [63 Okla. 80], 162 P. 733, this contention was made, and Mr. Justice Hardy, in delivering the opinion of the court said:

"`And if in fact the affidavit required by said section were not attached to the assessment roll, the failure of the assessor to make said affidavit and attach it would not render the tax illegal nor entitle the plaintiff to any relief in this proceeding. The requirement in this regard is directory, and the failure upon the part of the assessor to attach said oath to the assessment roll is an irregularity merely, and will not defeat the tax in a collateral proceeding.'

"It is urged by counsel that the instant case does not fall within the rule announced in that case, for the reason this is an appeal, a direct proceeding, and that was an injunction suit, a collateral proceeding. The language, `and will not defeat the tax in a collateral proceeding' is merely an application of the conclusion that the requirement is directory to the facts of that case."

Other cases holding the absence of the oath is a mere irregularity and does not vitiate the roll are Wallapai Mining Development Co. v. Territory, 9 Ariz. 373, 84 P. 85;Equalization Board v. Land Owners, 51 Ark. 516, 11 S.W. 822;Chesnut v. Elliott, 61 Miss. 569; State ex rel. Howard v.Timbrook's Estate, 240 Mo. 226, 144 S.W. 843; Spiech v.Tierney, 56 Neb. 514, 76 N.W. 1090; Merriam v. Dovey,25 Neb. 618, 41 N.W. 550; Odiorne v. Rand, 59 N.H. 504; Boardof Commissioners v. Field, 63 Okla. 80, 162 P. 733; Avant v. Flynn, 2 S.D. 153, 49 N.W. 15; In re Rolater, supra. I think the better policy and reasoning are that the statute requiring the auditor's oath is merely directory, and not mandatory.

There is another reason why I must disagree with my associates. Under our statute the certificate and auditor's deed are prima facie evidence of the matters as pointed out above, and the burden is upon the person who assails them to prove the defects. When defendants here put in evidence the certificate and deed they made their case unless the plaintiff could show irreguluarities to upset the title. To show there was no valid assessment, he must prove that fact. He did not sustain that burden. He rested content upon the single statement by Mrs. Oberto, the present treasurer, that on the day of her testimony, October 3, 1938, there was no such affidavit attached to the assessment roll for 1932. No effort was made to show there had been no such affidavit attached nor to show the affidavit was not on file at that very time in the office. As against the presumptions declared by the law the court could well have found, as it did find, that the rolls had been properly verified in 1932. But before this question was asked and answered, plaintiff as proof of certain other facts essential to his claims, had put in evidence over defendants' objections the assessment roll covering these lands and the tax computations upon them for 1932, the year in question; and even after the question now under consideration was before the court and the witness had answered as indicated above, plaintiff had Mrs. Oberto testify from the rolls and submit computations based upon them, which evidence was in support of other allegations and claims to sustain his case, and not designed to disprove the presumption of a valid assessment. The evidence a party puts in the record may conclude him and he cannot be heard, as is apparent here, to put the tax rolls in evidence as a valid assessment to show an auditor's deed and certificate of sale invalid, because of a claimed departure from the assessment, and failing in that shift to the position that the roll is not competent evidence of an assessment having been made.

What then is the purpose of the affidavit required of the auditor? What is the purpose of any oath of verification? Clearly to make the record prove itself. Such affidavit establishes the genuineness of the record without other proof. It is like an acknowledgment on a deed or other instrument required for recordation. But the absence of a notary's acknowledgment on a deed does not vitiate the deed. It merely necessitates other proof of its genuineness. So with these statutory oaths of officers to public records. They are verifications which prove the instrument, and establish their prima facie accuracy. If one had need to resort to the assessment roll to prove a fact shown thereby and the roll was not verified, it may be the roll would not become competent evidence. Like the record of an unacknowledged deed or mortgage, not being verified so as to entitle it to recordation, it perhaps imparts no notice, but as between the parties concerned it is effective. Since however the regularity of tax proceedings is assumed or proved prima facie by the fact of a sale and auditor's deed, and the burden of disproving any irregularity is upon the person assailing the tax proceedings, lack of verification of records would militate against the attacker rather than the holder of the tax title. If the tax title claimant, as was our rule at the time of Wall v. Kaighn and other early cases, had the burden of proving the validity of all tax steps, so he must rely on the record and not the presumption set up for him by the statute, the absence of the auditor's affidavit to the roll might affect him. I will note the cases seeming contra although no cases on the point are cited in the prevailing opinion. In California at the time the cases ofMiller v. Kern County, 137 Cal. 516, 70 P. 549, was decided the burden was upon the tax title claimant to prove by the record the regularity of all proceedings commencing with the assessment and ending with the deed to the purchaser from the county, and any defect in those proceedings vitiated the sale. In the Miller case the matter came up on demurrer. The complaint alleged that the assessment roll was not verified as required by law. The demurrer admitting such fact, the court in effect held that the unverified roll would not be evidence and the claimant therefore could not prove an assessment. To the same effect is Henderson v. Ward, 21 Cal.App. 520,132 P. 470, wherein the trial court found the roll was not verified and therefore could not be used as evidence. The appellate court affirmed. Exactly the same is Moyer v.Wilson, 166 Cal. 261, 135 P. 1125. In Brady v. Davis,168 Cal. 259, 142 P. 45, the validity of the assessment was challenged. The tax title claimant, who had to rely on the record, admitted the roll had not been verified, so it was not admissible as evidence of an assessment. Leonard v. Jaffray,175 Cal. 371, 165 P. 956, merely upholds the finding that there was no affidavit; the evidence not being shown. Brewer v.Kulien, 42 Wyo. 314, 294 P. 777; and Sidlo, Simons, Day Co. v. Phillips, 48 Wyo. 390, 49 P.2d 243, are cited. Wyoming follows the rule that the tax title claimant has the burden of proving by the record the validity of every step in the tax proceeding. The evidence was conclusive, the officer testifying he had never verified the rolls. They therefore could not be used as evidence to prove the assessment. The Texas cases cited, as shown by Friedner v. Galveston, supra, follow the same rule. That was a case in which the city sued for a tax. The question was: Does the unverified roll constitute proper evidence of a valid assessment? The court held that the burden was on the party who brought the suit to enforce a tax to prove its validity and he could not use the unverified roll as evidence. The cases from South Dakota, New York, Wisconsin, Iowa, Missouri, and Michigan, are all cases in which the person having the burden of proof sought to make the proof by the record, and the holdings are to the effect that the unverified roll cannot be used as evidence. In United States v. Klink, D.C., 3 F. Supp. 208, the court did not express its views on the question simply stating the decision of the Wyoming Supreme Court was binding on it and so it followed the Brewer v. Kulien case. As far as I have been ableto check the cases, I have found none under statutory provisionslike we now have and cited supra; holding the absence of anyaffidavit voids a tax sale. But as indicated above, where the rule prevails that matters must be proved by the records, many courts hold that the party who has the burden of making proof by the records cannot make it by unverified records. Thus the cases using the word "jurisdiction" are all cases in which the validity is not presumed as in this state, but proof must be made of every step by the records, and the holdings are simply in effect that it cannot be proved by an unverified record, and therefore when one who must supply the proof produces an unverified record which is not competent evidence he admits there is no evidence to warrant the sale. Under our statutes the validity is presumed and proved prima facie by the fact of a certificate of sale and issuance of an auditor's tax deed.

One further comment seems in order. As to those cases cited by Justice McDONOUGH — they seem to be answered by the Supreme Court of California in the second appeal in Miller v. Kern County,150 Cal. 797, 90 P. 119, 121, wherein the court held that suchaffidavits may be supplied after all tax proceedings are had up to delinquency, and that when the record is finally verified that is sufficient in the absence of a showing of proof of injurybecause of lack of verification. The court there says:

"The making and attaching of these affidavits to the assessment book is required, as stated by this court upon the former appeal, for the purpose of authentication. They are `acts relating to the assessment or collection of taxes,' beyond doubt. Section 3885 of the Political Code is as follows: `No assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law.' There was not an entire failure to perform the acts of making and affixing the affidavits. They were properly made and affixed, but not within the time specified in the Code. No injury was caused, and we cannot see that any injury could be caused by the delay. By the express language of section 3885 the delay did not make the affidavits or the assessment in question illegal. They were lawfully made and attached, and if the assessment was previously invalid for lack of them, as had been, in effect, decided for the purposes of this case, it became valid and lawful the moment they became attached to the book on November 1, 1895. This is a reasonable doctrine, and we perceive no benefit, public or private, to be derived from holding the contrary. It is fully supported by the decisions in similar cases. Buswell v. [Board of] Supervisors, 116 Cal. [351], 354, 48 P. 226; People v. Eureka, etc., Co. 48 Cal. [143], 146; Hart v. Plum, 14 Cal. [148], 155; Payne v. San Francisco, 3 Cal. [122], 126; State v. [Northern Bell Mill ] Mining Co., 15 Nev. [385], 388; State v. Western U.T. Co., 4 Nev. [338], 344; Walker v. Edmonds, 197 Pa. [645], 647, 47 A. [867], 868; Hooker v. Bond, 118 Mich. [255], 257, 76 N.W. [404], 405; 1 Cooley on Taxation (3d Ed.) 486." (Italics added.)

See, also, McGowan v. Elder, supra.

Bear in mind that in the case at bar no claim of injury orprejudice is made. There is no claim made that the lands were notproperly assessed, and plaintiff himself put the assessment roll in evidence to prove a proper assessment. It is merely claimedthere are informalities in certain instruments and records. I therefore resolve this point against appellant.

The matters upon which plaintiff relies do not void defendants' title. But if they did so, plaintiff could not have his title quieted because he admits a valid assessment and tax levy against the property, its nonpayment and a sale thereof. Not having redeemed or offered to redeem, he is not entitled to have his title quieted against either the county or its assignees, the defendants. Defendants' tax title notwithstanding plaintiff's assault was properly quieted.

PRATT, J., on leave of absence.