Hotchkiss

The object of this action is to secure a decree quieting plaintiff’s title to certain property which is described in the complaint.

The court awarded to plaintiff judgment as prayed for, and it is on an appeal from said judgment, and also from the order refusing defendants a new trial that the cause is brought to this court.

The property involved in this controversy consists of a large number of town lots situated in the town of Selma and in additions thereto, in Fresno county.

Defendants claim title to said lots through a sale thereof and a deed executed thereupon by the tax collector of Fresno county to satisfy the taxes levied on a mortgage subsisting on said lots. It was, in fact, stipulated by the parties “that the plaintiff was, at the commencement of this action, and is now, the owner of the property in controversy unless the title thereto was divested by a deed from the Tax Collector of Fresno County, dated the 18th day of July, 1900, to the State of California, and by a deed from the State of California, dated the 26th day of October, 1903, to the defendant herein, L. J. Hansberger.”

There are but two important points discussed in the briefs and upon which the…

I concur in the judgment. Upon further reflection, I think that Flannigan v. Towle goes too far in the statement of the rule as to the reimbursement of the purchaser at a tax sale. As I conceive it now, where the tax is legally assessed and is justly due and the property is sold to a purchaser in good faith, and the deed is not void upon its face, the purchaser has a claim in equity for reimbursement. This should be presented, however, in his answer, if a suit be brought against him by the owner to quiet his title. In the case at bar, since the plaintiff offered to reimburse the purchaser, I can see no equity in requiring the former to pay the latter, as a condition precedent to judgment, something that the defendant declined to accept and thereby made it necessary for plaintiff to incur the expense of a trial. In other respects I agree with the opinion of Justice Hart.