Higgins

Appeal from the judgment entered after demurrer sustained, plaintiff having declined to amend.

The action was for the recovery of four hundred and eighty-three dollars and forty-six cents, being the amount of municipal taxes levied by the plaintiff upon the property of defendant Higgins, for the year 1887, *172 with interest at the rate of two per cent a month, from January 1, 1888. A personal judgment against the defendant Higgins is asked, and it is also sought to subject the property to the lien of the taxes, principal, interest, penalties, and costs. The complaint was filed December 12, 1894.

Of the several grounds of demurrer urged against the complaint, that which presents the question whether or not the action is barred by the statute of limitations is the only one which need be considered.

On behalf of the demurrant it is claimed that plaintiff’s right of action is barred by section 838 of the Code of Civil Procedure. For the complaint it is insisted that sections 3716, 3717, and 3718 of the Political Code, together with section 312 of the Code of Civil Procedure, provide a limitation for the commencement of actions such as this, other and different from that…

I do not agree with the conclusion reached by the court in this case. The action is for the recovery of a municipal tax. It is sought to recover a personal judgment and to subject the property of the defendant to a lien for the recovery of the tax. It seems to be admitted that the action is well brought, unless the right of action is barred by section 338 of the Code of Civil Procedure. The court holds that such right is barred because the action was not commenced within three years.

Section 3716 of the Political Code reads as follows: “Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; and the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.”

It is decided that not only has the statute run against the right to maintain a personal action, but against the right to foreclose the lien as well. At the same time the code provision is construed to mean that the lien continues until the taxes are paid or the property has been sold for the payment thereof. It is held that the…