the law upon the court in probate to appoint more than one inheritance-tax appraiser as a probate appraiser, it does, however, become the duty of the probate court, under section 16 of the inheritance-tax law, to appoint such an appraiser, and in view of the provision of section 14 of such act that if the inheritance-tax appraiser shall have failed to act as one of the probate appraisers, the expense of making the inheritance-tax appraisement shall be paid out of the estate and not out of the inheritance-tax fund under the control of the county treasurer, the executor or administrator, as a matter of economy, may well see that such inheritance-tax appraiser acts in the matter of the inventory and appraisement of the estate.-Estate of Haskins, 170 Cal. 267, 149 Pac. 576. 3. While the appraisers in probate report upon the character and probable value of all the properties of the estate, the duties of the inheritance-tax appraiser are essentially different. He is to report upon the character and probable value of so much of the estate as is liable for the inheritance-tax, and, still further, he is to determine whether transfers of property have been made by the deceased of such nature as to render the property transferred liable to the inheritance-tax.— Estate of Haskins, 170 Cal. 267, 149 Pac. 576. 4. Constitutionality — - Double taxation.— The fact that the state in which the personal property is distributed on ancillary administration also imposes an inheritancetax does not violate any principle of constitutional law against double taxation.-Estate of Hodges, 170 Cal. 492, L. R. A. 1916A 837, 150 Pac. 344. 5. Construction of act.-The inheritancetax law of 1911 contemplates notice and a hearing of the report of the inheritance-tax appraiser, a determination by the court after such hearing, and an authorization to the county treasurer to receive the tax when such formal proceedings have been taken, and where the law is not followed and the amount of the tax not fixed by judicial decree, the court has no power after final distribution to amend its decree by a nunc pro tunc order directing the payment of the tax, and the treasurer is justified in refusing to accept the same.-Estate of Haskins, 170 Cal. 267, 149 Pac. 576. 6. Conveyance by husband to wife prior to passage of act.-The act of April 7, 1911 (Stats. 1911, p. 713), providing for a tax on any transfer by deed "made without valuable and adequate consideration in contemplation of the death of the grantor, or intended to take effect in possession or enjoyment at or after such death," when the party taking "becomes beneficially entitled in possession or expectancy to any property or the income therefrom, by any such transfer, whether made before or after the passage of such act," is not applicable to a deed made by a husband to his wife prior to the passage of such act, where such deed was immediately delivered to a third party with instructions to deliver it to the grantee named therein on the death of the husband, notwithstanding that his death occurred after the passage of the act.-Hunt v. Wicht, 53 Cal. Dec. 64, 162 Pac. 639. 7. Proceedings to collect tax.-The inheritance-tax statute as it existed in 1911 (Stats. 1911, p. 713) did not impose a tax, generally, upon transfers made in contemplation of death or intended to take effect in enjoyment after death, but only upon such transfers when made "without valuable and adequate consideration," and the absence of the consideration is just as essential to the obligation to pay the tax as is the contemplation of death, of the intention of the transferrer that possession or enjoyment shall be postponed until death; and the burden is on the officer seeking to recover a tax under subdivision 3 of section 1 of said act to show that there was not a valuable and adequate consideration for the transfer.-McDougald v. Boyd, 172 Cal. 753, 159 Pac. 168. 8. In a proceeding to collect an inheritance-tax under the inheritance-tax statute as it existed in 1911, the contention that the appellant, if she wished to raise the question, should have demurred to the petition for failure to allege a want of consideration, can not be sustained, as the demurrer would have been of no avail, where the petition alleged that the property sought to be taxed belonged to the deceased at the time of his death, for if this allegation had been true, the tax would have accrued under subdivision 3 of section 1; nor is this objection removed by the contention that the case was tried upon the theory that there was no consideration, where it does not appear that any reference was made to the matter of consideration during the trial, or that there was any evidence specifically directed to this point. The burden of proof being on the plaintiff, defendant was not bound to offer evidence, and had a perfect right, after judgment, to insist that the facts necessary to establish a liability on her had not been alleged or proven. -McDougald v. Boyd, 172 Cal. 753, 159 Pac. 168. 9. In an action brought under the provisions of subdivision "A" et seq. of section 29 of the inheritance-tax law to quiet title to real property against the state's claim of lien of an inheritance-tax, wherein the defendant averred that the deed upon which plaintiff's claim of title was founded had been made by the grantor in contemplation of death and to take the place of a testamentary disposition of realty, it is error to exclude evidence of the value of the property cffered by the defendant, but such error is without injury to plaintiff, where it was shown by its own witnesses that the land was of a greater value than five hundred dollars, and, therefore, not exempt from the tax.-Abstract & Title Guaranty Co. v. State of California, 173 Cal. 691, 161 Pac. 264. 10. Property subject to tax. - Personal property of a resident decedent in this state, which at the time of his death is located outside of the state and which is never brought into this state for the purposes of administration, is subject to an inheritance tax under the application of the familiar maxim, mobilia sequuntur personam. Estate of Hodges, 170 Cal. 492, L. R. A. 1916A 837, 150 Pac. 344. 11. A gift of real property made by a husband to his wife two days before the performance upon him of a surgical operation, considered necessary to save his life, and a gift of real property made by him to her a few months thereafter upon the recurrence of the disease five months before his death, are transfers made in "contemplation of death" within the meaning of the inheritance-tax act of 1911, and therefore subject to such tax.-Estate of Reynolds, 169 Cal. 600, 147 Pac. 268. 12. A transfer of store property valued at one hundred thousand dollars and the merchandise contained in the store, made by a father to his son a few months before his death and while suffering from a mortal disease, in consideration of an agreement by the son to assume an indebtedness of thirty thousand dollars and pay the father six hundred dollars per month during his life, does not measure up to the require ments of the inheritance-tax act of a valuable and adequate consideration for the transfer, and is therefore subject to such tax.-Estate of Reynolds, 169 Cal. 600, 147 Pac. 268. 13. Valuation of property — As of what time determined.-In determining the valuation of the property of an estate which passed under a will to a residuary legatee, for the purpose of fixing the amount of the inheritance tax due under the InheritanceTax Act of 1905 (Stats. 1905, p. 341), the value of property which so passed to such legatee, but which by reason of its misappropriation by the executor was lost to the estate, is properly included.-Estate of Hite, 159 Cal. 392, 113 Pac. 1072. 14. The question whether property is subject to the tax is to be determined on the conditions existing at the time of death, and the tax is to be assessed on the value of the property at that time. Subsequent appreciation or depreciation is immaterial.Estate of Hite, 159 Cal. 392, 113 Pac. 1072. 15. The right of the state to the tax accrues at the moment of death, and is measured as to any beneficiary by the value at that time of such property as then actually passes to him.-Estate of Hite, 159 Cal. 392, 113 Pac. 1072. §3753. SETTLEMENT OF TAX-COLLECTOR WITH AUDITOR; WHEN MADE; FORM OF. On the first Monday in each month the tax-collector must settle with the auditor for all moneys collected for the state or county, and pay the same to the county treasurer, and on the same day must deliver to and file in the office of the auditor a statement under oath, showing: 1. An itemized account of all his transactions and receipts since his last settlement, which account must show the amount collected for each fund or district extended on the assessment book. 2. That all money collected by him as tax-collector has been so paid to the county treasurer. History: Enacted March 12, 1872; amended May 11, 1917, Stats. and 1. Embezzlement before settlement. Where the defendant was charged with embezzling certain money on November 1 and the evidence showed that the money embezzled was the proceeds of a check received on October 29 but not cashed until Novem ber 3, and the proceeds became a part of the funds for which the defendant was to account at the end of the latter month, these two offenses are but a part of the same criminal act.-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090. §3757. WHEN TAXES BECOME DELINQUENT. SECOND INSTALMENT [repealed]. § 3764. History: Original section enacted March 12, 1872, and repealed quent state, road, and hospital tax by this section, in order that all taxes constituting liens on the property assessed may be collected or enforced against such property.Hall v. Park Bank of Los Angeles, 165 Cal. 356, 132 Pac. 452. 2. Construed in connection with § 3860. See post, § 3860. § 3769a. LAND SOLD FOR TAXES ENCUMBERED BY TRUST DEED OR MORTGAGE [repealed]. § 3770. 1. History: Enactment approved March 20, 1905, Stats. and Amdts. 1905, p. 550; repealed May 11, 1917, Stats. and Amdts. 1917, p. 431. In effect July 27, 1917. Construed in connection with § 3860. See post, § 3680. 2. Where land is assessed with improvements. The right to collect an advertising charge exists solely by reason of the provisions of this section. There is no authorization for a separate fifty cent charge for improvements on land where the assessment is a single assessment of the land with the improvements thereon, with the respective values of the land and improvements stated in separate columns; the limit of the charge in such case is fifty cents for both land and improvements thereon.-Hall V. Park Bank of Los Angeles, 165 Cal. 356, 132 § 3780. 1. Time in which redemption may be effected. The owner's right of redemption remains until the state has disposed of the land under § 3897.-Jordan v. Beale, 172 Cal. 226, 155 Pac. 990. § 3786. 1. Construction. The provisions of this section are not so broad as those of section 29 of the "Street Opening Act of 1903" (Stats. 1903, p. 376).-Tilton v. Russek, 171 Cal. 731, 154 Pac. 860. § 3787. TAX-DEED, WHAT RECITALS IN ARE CONCLUSIVE EVIDENCE. Such deed, duly acknowledged or proved, is (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed. Such deed conveys to the state the absolute title to the property described therein, free of all encumbrances, except any lien of taxes levied for municipal or irrigation district purposes and except when the land is owned by the United States or this state; in which case it is the prima facie evidence of the right of possession, accrued as of the date of the deed to the state. 1. History: Enacted March 12, 1872; amended March 28, 1895, Stats. and Amdts. 1895, p. 329; June 10, 1913, Stats. and Amdts. 1913, p. 559; May 5, 1917, Stats. and Amdts. 1917, p. 241. In effect July 27, 1917. Only when the deed conforms to the requirements of the law is it made evidence of regularity of the proceedings.-Bruschi v. Cooper, 30 Cal. App. 682, 159 Pac. 728. § 3788. 1. Construction.-The right given to the purchaser whose land had been sold to the state for delinquent taxes was not to redeem (as was the right given under § 3817), but was a right to become a purchaser in preference to any other person if, when application was made, there was no other conflicting application. His rights were no greater than those of any other purchaser, except that he was a preferred purchaser for a limited period.-Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830. § 3788a. LANDS SOLD TO STATE. 1. Construction. 2. Repealed in part. 3. Restoration to former estate. 1. Construction.-The method of enforcing payment of interest as a condition to the repurchase or redemption of school lands under the amendment of 1909 was no more burdensome than to enforce payment by foreclosure, and is less expensive and an noying to the intending purchaser or redemptioner.-Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830. 2. Repealed in part.-This section is in conflict with Act of 1915, S. B. 906, chap. 389, and is thereby repealed by said act in so far as it provided a different method for the disposition of school land.-Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830. 3. Restoration to former estate.-Where a sale had been made to the state of school lands for non-payment of taxes and a deed issued to the state, all rights of defaulting purchasers in such lands are extinguished, and the only way by which they can be restored to their former rights is by compliance with the law existing at the time of making application for such restoration. Under such circumstances the state has the right to dictate the terms upon which they may be repurchased by the original or new purchaser, or the conditions upon which the owners or purchasers or their assigns may be restored to their original state or title.Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830. § 3804. 1. Erroneously collected taxes-Construction. This section, together with section 3819, does not provide for payments of money out of the state treasury, but only allows deductions to be made from collections of taxes that would otherwise be paid into the state treasury. The enactment of these sections can have no proper bearing upon the meaning and effect of the prohibitions in the constitution concerning payments from the state treasury.-Westinghouse Electric & Mfg. Co. v. Chambers, 169 Cal. 131, 145 Pac. 1025. 2. -Action to recover-Rejection of demand.—An action to recover illegally collected taxes may be brought under the provisions of section 3804 of the Political Code, where demand upon the board of supervisors therefor is seasonably made, and the board fails to take any action thereon for a period exceeding six months. Such an unreasonable delay amounts to a rejection of the demand.-Otis v. San Francisco, 170 Cal. 98, 148 Pac. 933. $3804b. PROPERTY ASSESSED BY TWO OR MORE COUNTIES. CANCELLATION OF DOUBLE ASSESSMENT. Where real property shall hereafter be assessed by the assessors of two or more counties for the same year the owner thereof may file an action in the superior court of one of said counties against the conflicting claimants and discharge the obligation by paying the largest amount of taxes assessed and levied on said land by any of said counties into court and compel said counties to interplead and litigate their several claims among themselves in accordance with section three hundred eighty-six of the Code of Civil Procedure. Where real property has heretofore been assessed by the assessors of two or more counties for the same year and the owner thereof has paid all of the taxes on one of such assessments, upon proof of the payment of such taxes on one of such assessments for any year, by the production of a tax receipt or certificate of the auditor of the county in which such payment has been made, the board of supervisors of any other county claiming the right to assess and tax such real property, shall thereupon enter an order upon its minutes directing the auditor to cancel such double assessment of such property by an entry on the margin of the assessment book, as also upon the delinquent list, should such double assessment be carried therein. If the property assessed under such double assessment has been sold to the state and a certificate of sale or deed therefor has been issued to the state, the order of the board shall further direct the recorder to cancel such erroneous certificate and deed so issued except where the state has disposed of the property thereby conveyed. § 3807. History: Enactment approved April 13, 1917, Stats. and Amdts. 1917, p. 118. In effect July 27, 1917. 1. Construction.—This section does not dispense with the requirement that the deed shall correctly recite the name of the person to whom the property was assessed, as a condition to its validity.-Bruschi v. Cooper, 30 Cal. App. 682, 159 Pac. 728. §3817. 1. Construction. The method prescribed by this section in 1883 for the redemption of school lands sold for delinquent taxes applied only to purchasers who had paid "the full amount of one dollar and twentyfive cents per acre." Thus it remained until 1895, when it was made to apply to purchasers "when the full amount of the purchase price of one dollar and twenty-five cents per acre has not been paid, except where the deed to the state, provided for in section 3785, has been filed with the surveyor-general." By this act there were many changes made in the sections of the Political Code relating to the sale, redemption, and disposition of lands sold for delinquent taxes. School lands were made subject to the act and were referred to in sections 3785 and 3788 as well as in this section.-Curtin v. Kingsbury, 31 Cal. App. 57, 159 Pac. 830. §3818[a]. PARTIAL REDEMPTION. In all cases where a lot, piece, or parcel of land contained in any assessment has been sold or may hereafter be sold for delinquent taxes to the state, and the state has not disposed of the same, a partial redemption may be made, separately from the whole assessment, of any such lot, piece or parcel of land as follows: If such lot, piece or parcel of land has a separate valuation on the assessment roll, such partial redemption shall be made in the manner following: [Manner of partial redemption.] In the estimate provided for in the preceding section, the auditor shall estimate the amount of state and county taxes due on such lot, piece or parcel of land, together with a proper proportion of the taxes due on personal property under such assessment, and of the taxes due each school, road, lesser or other taxation district; and such redemption shall be made in the manner provided for in the preceding section. If such lot, piece or parcel of land does not have a separate valuation on the assessment roll, the auditor shall investigate and ascertain the relative or proportionate value such lot, piece or parcel of real property bears to the whole tract assessed, and the auditor shall estimate the amount of such taxes due on such lot, piece or parcel of land according to such relative or proportionate value and the taxes due on any improvements on the portion sought to be so redeemed, together with a relative proportion of the taxes due on personal property under such assessment, and of the taxes due each school, road, lesser or other taxation district; whereupon such redemption shall be made in the manner provided for in the preceding section; provided, that no lot, piece or parcel of land owned or claimed under contract by the person so redeeming shall be divided for the purpose of such redemption. A notice by registered mail of the proposed division must be given by the auditor to the person or persons to whom the same was assessed, if known to the auditor, if not so known, by posting a notice of such proposed division for a period of twenty days in three public places in said county, and if no protest against said division be filed with the auditor within twenty days from the date of the posting or mailing of such notice, the auditor shall thereupon issue an estimate as above stated. In cases where written protest is filed within said twenty days to said division, the auditor shall withhold his estimate and refer the matter to the board of supervisors for decision. The board of supervisors shall set a time for hearing said protest, and cause a notice of the date of said hearing to be mailed by its clerk to the person or persons who have filed a written protest with the auditor, as above provided, at the post-office address named in such protest, at least five days prior to the date of such hearing, and at the termination of said hearing may confirm the act of the auditor or modify or set aside the same and its decision in the premises shall be final. In the event of such reference to the board of supervisors and of their dividing the assessment, the estimate of the auditor shall conform to the action of the board. A partial redemption may be made, in like manner, separately from the whole assessment, of an undivided interest in any real property, if such property has a separate valuation on the assessment roll; the auditor estimating the amount of taxes due on such undivided interest according to the proportion which such interest in said real property bears to the whole assessment. The recorder shall note, on the margin of the record of the certificate of sale a description of the property or undivided interest redeemed under this section, and shall specifically set forth the several amounts of taxes paid upon such redemption. History: Enactment approved April 1, 1897, Stats. and Amdts. 1897, p. 434; amended June 1, 1917, Stats. and Amdts. 1917, p. 1633. In effect July 31, 1917. Note: See Editorial Notes in Kerr's Cyc. Pol. Code, §§ 3818 and 3818[a]. § 3819. As to construction of, see ante, § 3804. |