Tuttle v. Block

Vancliee, C.

On the petition of plaintiff an alternative writ of mandate was issued to defendant in .his official character as tax collector of the city and county of San Francisco, commanding him to execute to plaintiff a deed of a certain lot of land which had been sold by defendant’s predecessor in office to plaintiff’s assignor for delinquent taxes, or to show cause why he had not done so.

The court sustained defendant’s demurrer to the petition on the ground that it does not state facts sufficient to entitle plaintiff to the writ, and thereupon dismissed the proceeding. From this judgment the plaintiff appeals.

The petition and affidavit of plaintiff show that the lot in question was on March 31, 1875, regularly sold to William Bosworth for delinquent taxes theretofore properly assessed to W. W. Lapham as owner, and that a certificate of such sale in due form was then issued by the tax collector to Bosworth; that the lot has never been redeemed from said sale; that after the time for such redemption had expired, to wit, December 1, 1875, Bosworth assigned the certificate of sale, with all his rights incidental thereto, to the plaintiff; that plaintiff thereupon entered into possession of the lot, and has ever since had sole possession thereof, and that the same has ever since been assessed to him for taxes, all of which taxes he has paid; that on March 20,1893, the petitioner presented said certificate of purchase to defendant, and demanded that he, as tax collector, etc., officially execute to petitioner a deed for said lot, and, at the same time, tendered to defendant three dollars as and for his lawful fee for making such deed; hut that defendant then refused, and ever since has refused, to execute such deed.

The specific and only ground upon which the demurrer was sustained is that the petition shows that petitioner’s right to the writ is barred by section 3788 of the Political Code as amended February 13, 1885, which, among other things, provides: “In all cases where land has *448 been heretofore sold for delinquent taxes the deed therefor must be made within one year and three months after this act takes effect, and, unless so made, the purchaser shall be deemed to have relinquished all his rights under such sale.”

Neither at the time of the tax sale to Bosworth, nor at any time prior to the enactment of this amendment (February 15, 1885) of section 3788 of the Political Code, was there any statutory limitation upon the time within which the deed must have been made by the tax collector, except that it could not have been made until after the expiration of the period allowed for redemption, which period expired in this case in 1875, more than nine years before the passage of the amendment.

Appellant contends that, by virtue of the contract of sale, he was entitled to a deed from the defendant, not only at the time the amendment was passed, but indefinitely thereafter, including the time when this proceeding was commenced, eight years after the passage of the amendment, and more than six years after the expiration of the period of limitation prescribed by the amendment; and, therefore, that the limitation of his right of action to compel the defendant to execute such deed to the period of one year and three months after the amendment took effect impairs the obligation of the contract of sale, and for this reason is repugnant to section 16 of article I of the constitution of this state, which prohibits the passage of any law “impairing the obligation of contracts.”

The amendment in question is clearly a prospective statute of limitation of the time within which the tax deed must have been made, and consequently a like limitation of the time within which an action must have been commenced to enforce the making of such deed; and, as such, does not impair nor purport to impair the obligation to make the deed, but merely prescribes a reasonable period of time, after the passage thereof, within which an action for a breach of such obligation must have been commenced.

*449 It is claimed, however, that under the contract of sale the obligation to make the deed was without any limitation by law as to the time within which the deed must be made or the obligation enforced; and therefore that it was an essential part of the obligation of the contract that the time within which it might be enforced should be unlimited, and that the passage of a law, after the maturity of the obligation, limiting the time within which it could be enforced, impairs this essential part of the obligation of the contract.

This argument, though often made heretofore, has been answered and almost uniformly overruled by the highest authorities. It is well settled that a reasonable limitation of the time within which a matured contractual, obligation maybe enforced by suit does not impair the obligation of the contract in the sense of the constitutional prohibition cited; and it has been often held that a limitation to one year, and even to six months, is not unreasonable, and does not impair the obligation of the contract nor deprive the obligee of an adequate remedy. Of the great number of authorities to this effect only the following, deemed specifically in point, need be cited: Terry v. Anderson, 95 U. S. 628 ; Vance v. Vance, 108 U. S. 514 ; Wheeler v. Jackson, 137 U. S. 245 ; Kerckhoff etc. Lumber Co. v. Olmstead, 85 Cal. 80 ; Korn v. Browne, 64 Pa. St. 55.

Upon the question under consideration the authority of the supreme court of the United States is paramount, since the federal constitution also prohibits the passage of a law, by any state, impairing the obligation of contracts, and that court, upon writ of error, may review and reverse the final judgment of the highest court of law or equity of any state upon this question.

The appellant relies principally upon the cases of Robinson v. Magee, 9 Cal. 81 , 70 Am. Dec. 638 , and Rollins v. Wright, 93 Cal. 395 . But I think those cases distinguishable from the case at bar. The law which was held to impair the obligation in each of those cases required the obligee to perform an onerous act, not *450 required by the contract nor by any law in force at the time the obligation matured, as a condition precedent to any remedy for a breach of the obligation; whereas, in this case the law in question requires no such condition; but, on the contrary, assumes the right of the obligee to an immediate unconditional remedy, and merely limits the time, prospectively, within which such remedy must be sought or prosecuted to one year and three months. If this is not a substantial distinction, available to exempt this case from the rule announced in those cases, neither is there any such distinction between those cases and that of Kerckhoff etc. Lumber Co. v. Olmstead, 85 Cal. 80 , nor between them and the decisions of the supreme court of the United States above cited; and the consequence must be that the legislature is prohibited from reducing the period of limitation of actions ex contractu from that prescribed by law at the time the obligation matured, even though the remedy is not thereby impaired nor the period of limitation so much reduced as not to afford a reasonable time within which to apply for the remedy. In view of the authorities it seems clear that such a consequence is not admissible.

If, as I understand counsel to claim, the amendment of section 3788 of the Political Code purports to deprive appellant of vested rights other than the alleged right to unlimited time within which to commence this proceeding, no question as to any such other right is involved in this appeal, and therefore need not be considered.

I think the judgment appealed from should be affirmed.

Temple, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

McFarlaND, J., De HaveN, J., Fitzgerald. J.