The work and services of | without any finding on the issue of the makof 7 years to 21 must ing or nonmaking of the contract, support Jerable value as opposed m in the way of educa- the judgment, and the rule is that, when d nurture. And when there are sufficient findings on issues made nat, during all of this time in the case to support a judgment, it is imtiff had the privilege of mself, we must conclude material that there is no finding, or an ersilas Bowman of the servroneous finding, on some other issue which, as small and was capable if made, or differently made, would not comes and cents. The value pel any different conclusion from that reache plaintiff to his foster was negligible. A careful ed by the findings which were actually made. ny fails to show any conformed by the plaintiff for the trip to Alaska, while it loaned to his foster child

had a sincere affection for his foster son, the, plaintiff, and often expressed the intention of leaving all of his property to him, except that he (Silas) intended to aid Thomas Scofield to some extent. It further appears from the evidence that, upon the return of the plaintiff and said Scofield from San Diego with the remains of Silas, a meeting of some of those interested in the estate was held in the office of W B. Croop, a practicing attorney of Merced. Before the meeting. Mr. Croop, who had for several years acted as the attorney for the decedent, Silas Bowman, went to the bank which held the papers of the decedent, secured the tin box in which they were contained, and on the arrival of Thomas Scofield and Mrs. Smyer, niece of decedent, the plaintiff proceeded to open the aforesaid box. The key to this box, it appears, was held by Scofield. On opening the box, neither will, deed, nor other paper was found, which could throw light upon the intended disposition of the property of Silas Bowman. Twice afterwards the box was inspected with no better results. Mr. Croop also testified that he had never drawn any deed wherein Silas Bowman made conveyance to the plaintiff.

"After the appointment of Mary Smyer as administratrix of the estate of Silas Bowman, the administratrix requested the plaintiff to give to her the lease under which he held the Bowman ranch, and the plaintiff replied that he could not comply, as this lease was the only evidence of his right to the possession thereof. It also appears in evidence that at another time, after said appointment, and when the plaintiff was being reimbursed for his outlay on the San Diego trip, he was asked if he had any other claim against the estate, and he answered in the negative. Evidence was also introduced on behalf of the defendant tending to show that, at one time after the return of the plaintiff from Alaska, the decedent, Silas, told the plaintiff that he had given to him all that he (Silas) intended to give, and that he need not expect more. Other witnesses for the defense testified that the plaintiff had informed them that he did not expect anything from the estate of Silas Bowman, because Silas had too many relatives. It further appears that the plaintiff asked of the attorney for the administratrix if he could hold the Bowman place under the lease.

[1, 2] "There can be no doubt that, under the law of this state as it existed prior to 1905, an oral promise to convey an estate by will, under certain circumstances, was enforceable in equity and is still enforceable where the promise was made prior to said date. In the case of Owens v. McNally, 113 Cal. 449, 45 Pac. 711, 33 L. R. A. 369, Mr. Justice Henshaw, speaking for the Supreme Court, said (quoting Jaffe v. Jacobson, 48 Fed. 21, 1 C. C. A. 24): We concede the law to be that a court of equity will specifically enforce a promise to leave to another the whole, or a definite portion of one's estate as a reward for peculiar personal services rendered, or other acts done by the promisee, which are not susceptible of a money valuation, and were not intended to be paid for in money, provided the consideration has been substantially received at the promisee's death.' (Through inadvertence the word promisee's' was quoted in the California case instead of 'promisor's.') And in the opinions in Owens v. McNally the following language was also used: The question whether relief should be granted or denied in a particular case addresses itself peculiarly to the conscience of the Chancellor.' And the rule laid down in Pomeroy on Specific Performance is cited with approval in McCabe v. Healy, 138 Cal. 84, 70 Pac. 1008, as follows: 'Courts of equity will under special circumstances enforce a contract to make a will, where, in reliance upon the contract, the promisee has changed his condition and relations so that a refusal to complete the agreement would be a fraud upon him. In addition, before such en

forcement can be had the court will be more strict in examining into the nature and circumstances of such agreements, than any others, and will require very satisfactory proof of the fairness and justness of the transaction. McCabe v. Healy, Id. See, also, Owens v. McNally, supra; Flood v. Templeton, 148 Cal. 374, 83 Pac. 148; Baumann v. Kusian, 164 Cal. 582, 129 Pac. 986, 44 L. R. A. (N. S.) 756. The strictness with which courts of equity look upon such agreements has its philosophy in the rule that the stability of the possession and title to property must be preserved. Mr. Justice Melvin, in Blanc v. Connor, 167 Cal. 722, 141 Pac. 218, says: 'It is asserted that this is a class of cases sometimes arising in fraud and abounding in perjury.' But while this observation may have no just application to this case at bar, yet the rule that oral contracts affecting title to real estate are enforceable in equity doubtless gives vigor to the art of imagination and the science of auto-suggestion. The Legislature realizing this, in 1905, provided by statute that agreements to devise or bequeath property must be in writing. Section 1624, Civ. Code.

"From the foregoing statement of the facts in the case it will be seen that considerable doubt exists-viewing the testimony most favorably to the plaintiff-whether a case has been made out authorizing the extraordinary remedy sought by plaintiff. The case at bar is more nearly like the case of Baumann v. Kusian, supra, than any other decided by our Supreme Court. In the case cited two girls were taken into the family by their benefactress, and it was claimed by them that their benefactress agreed to make them heirs of her estate if they complied with her wish to come West with her. The court said: 'We are of the opinion that it also sufficiently appears that there was no such showing of adequacy of consideration for the alleged promise * as to appeal to a court of equity as requiring specific performance in the face of the rule that the contract must be just and fair. In the case at bar the plaintiff gave up nothing of value to become an inmate of Silas Bowman's home. Unable to speak the English language, he was there taught it. Carefully nurtured by loving hands, he received also an education at the expense of his benefactor. Small wonder was it that, when in 1890 the father of the plaintiff sought to gather together his children, the plaintiff revolted and would not return. His affections had been won by his foster parent, and this fact best portrays the kindness of Silas Bowman.

*

"Unlike the case of McCabe v. Healy, supra, the plaintiff did not give his entire time or services to Silas. During the period of plaintiff's minority he had ample time to work for for the plaintiff testified, 'He,' Silas Bowman, others, and did so. As one of the witnesses 'told me that there was not much work on the ranch and he wanted to have Lawrence go out and work that he might understand the value of money.' That the lessons taught by the foster parent found lodgment in a fruitful field is shown by the fact that in 1907 the plaintiff had in live stock almost one-half the number owned by his foster parent, and land in proportion. So does it appear that, in every venture of the plaintiff to better his condition, he had the active co-operation of Silas. No thought of self-aggrandizement possessed Silas Bowman when the welfare of the plaintiff was concerned, and the court can only marvel that no provision was made carrying out the expressed intention of Silas Bowman to provide well for his protégé. That the plaintiff, after his graduation from the grammar school, looked to his own emolument, there seems to be no doubt. The venture in well boring, the acquisition of stock and land, in which Silas Bowman had no interest, so indicates. The trip to Alaska was likewise taken to provide for the financial inter

est of plaintiff solely. The work and services of | without any finding on the issue of the makplaintiff from the age of 7 years to 21 must ing or nonmaking of the contract, support have been of inconsiderable value as opposed

by the return given him in the way of educa- the judgment, and the rule is that, when tion, and comfort and nurture. And when there are sufficient findings on issues made we consider the fact that, during all of this time in the case to support a judgment, it is imof minority, the plaintiff had the privilege of material that there is no finding, or an erearning money for himself, we must conclude

"If then the case at bar does not portray such a one (even viewed most strongly for plaintiff) as appeals to the conscience of a chancellor to award specific performance, it becomes unnecessary to declare upon the weight of evidence. But in passing it is not improper to say that evidence of the declaration of the plaintiff to the effect that he expected nothing from the estate of Silas,' and that he had no claim against it,' are inconsistent with the idea that a binding obligation had been assumed by Silas Bowman to leave all of his estate to the plaintiff. ***

that the net value to Silas Bowman of the serv-roneous finding, on some other issue which, ices of the plaintiff was small and was capable | if made, or differently made, would not comof estimation in dollars and cents. The value pel any different conclusion from that reachof the services of the plaintiff to his foster parent after majority was negligible. A careful ed by the findings which were actually made. perusal of the testimony fails to show any con- [6] One point on a ruling as to evidence is siderable service performed by the plaintiff for made. The court refused to reopen the case Silas Bowman after the trip to Alaska, while it does appear that Silas loaned to his foster child on the motion of counsel for appellant in ormoney and otherwise cared for him. der that he might introduce in evidence a deed from one Bent to appellant, made October 4, 1899. A witness for respondent (Elmer Hill) had testified that he heard Silas Bowman, in July or August, 1898, or 1899, say to plaintiff, "You had better move to your own place," and the averred purpose of the intended offer of the deed by plaintiff was to contradict this witness by showing that appellant had not at the dates mentioned by the witness Hill any place of his own to move to, not having acquired the deed from Bent. As the witness Hill was not at all confident as to the exactness of the dates given by him, this evidence would have been of doubtful efficacy as impeaching testimony. The matter of these dates did not affect the substance of the statement made by Bowman, and, even if it was error to have refused it, it was too trivial to warrant a reversal of the judgment.

[3] "It follows from the views expressed that the plaintiff is not entitled to the remedy sought."

An examination and consideration of the record on appeal, under the claims made by appellant for a reversal, satisfies us that in the foregoing decision of the case after submission to him the trial judge stated all the material facts in evidence and correctly ap plied the law to them. It also fully answers the objections as to the sufficiency of the evidence to sustain the findings challenged and the further claim that the findings do not support the judgment. We are fully satisfied with the reasoning and conclusions of the trial court, and the opinion of the judge thereof embodying them is hereby adopted as the opinion of this court.

[4, 5] It will be observed that in writing the opinion, though reciting the facts, the court devotes but little discussion to the question whether the contract asserted by appellant to have been made with Silas Bowman

was in fact made, the view of the court being that, even if such contract had been made, still the case presented by appellant was not, for the reasons given by the court and sanctioned by the authorities, of such a character as would warrant specific performance. After the filing of its opinion and when the court came to make findings, it found, however, that the contract asserted by appellant as having been entered into between himself and the deceased had not been made, and one of the claims of the appellant is that this finding is not supported by the evidence but is contrary thereto. While we think that there was sufficient evidence in the case warranting the court in making the finding it did, still whether that finding was or was not correctly made could not affect the judgment. The other findings made, with or

The judgment appealed from is affirmed.

We concur: MELVIN, J.; WILBUR, J.

(178 Cal. 786)

MARYSVILLE WOOLEN MILLS v. SMITH,
Marshal, et al. (Sac. 2574.)

(Supreme Court of California. Sept. 5, 1918.
Rehearing Denied Oct. 3, 1918.)
1. TAXATION 811-SALE FOR TAXES-DE-
TERMINATION OF INVALIDITY.

In action to remove cloud on title through sale, finding that plaintiff was owner of properissuance of certificate of sale at delinquent tax ty involved was necessarily determination that tax sale to defendant was void.

2. STATUTES 219-EXECUTIVE CONSTRUCTION-ACTION UNDER REPEALED LAW-DISTURBANCE OF TITLES BY COURT.

Where city for nearly 50 years has acted
in all tax proceedings on theory that repealed
tax law was in force, court will be particularly
loath to disturb such condition, and unsettle
titles, and will do so only when a clear neces-
sity for deciding the point shall arise.
3. TAXATION 656–SALE BEFORE Delin-
QUENCY-VOID CHARACTER.

fore the taxes were delinquent, on the first
A sale for taxes, made December 4th, be-
Monday in January following, was void.
4. MUNICIPAL CORPORATIONS
CHANGE IN TAX LAWS-ORDINANCES-Bur-
DEN OF PROOF.

982

In action to remove cloud on title through issuance of certificate of sale at delinquent tax sale, burden was not on plaintiff to prove or

dinances of city changing dates of assessments,, plaintiff was the owner of the real and perdelinquencies, sales, etc.; it being defendant sonal property involved in the tax sale purchaser's duty to show general law which governed had been modified, the sale being otherwise void.

5. EVIDENCE 32-JUDICIAL NOTICE-MUNICIPAL ORDINANCES.

Supreme Court cannot take judicial notice of tax ordinances of city in action to remove cloud on title, through issuance of certificate of sale in delinquent tax sale, originating in superior court.

6. TAXATION 800(1)-VOID SALE FOR TAX

ES-TENDER TO PURCHASER.

Sale for delinquent taxes and certificate of sale issued to purchaser being void, owner of property, before bringing action to remove cloud on title, was not required to make any tender to purchaser at all; latter being entitled only to reimbursement for moneys spent in purchasing and for subsequent taxes and in

terest.

7. INTEREST 50-SUSPENSION-TENDER.

In action to remove cloud on title through

certificate of sale for delinquent taxes, purchaser having refused to take more than he was entitled to when plaintiff tendered it, and forced him to sue, trial court's denial to purchaser of interest on purchase price of property and subsequent taxes paid will not be disturbed.

Department 2. Appeal from Superior Court, Yuba County; Eugene P. McDaniel, Judge.

Action by the Marysville Woolen Mills against Chester A. Smith, Marshal and ex officio Tax Collector of the City of Marysville, and Waldo S. Johnson. From the decree, and an order denying his motion for new trial, defendant Johnson appeals. Judg

ment and order affirmed.

Evan J. Hughes, of Sacramento, W. E. Davies, of Marysville, and Downey, Pullen & Downey, of Sacramento, for appellant. W. H. Carlin, of Marysville, for respondent.

LORIGAN, J. Two other cases on appeal-California Midland Ry. Co. v. Chester A. Smith, Marshal, etc., et al., Sac. No. 2576, and John Martin v. Chester A. Smith, Marshal, etc., et al. Sac. No. 2575, 175 Pac. 16, involve the same controlling points as are embraced in this appeal and by stipulation of all parties are submitted to abide the decision on the appeal under present consideration.

which, it may be here remarked, was nec-
essarily a determination that the tax sale
to appellant was void. It further found,
sale of the property for delinquent taxes,
among other proceedings eventuating in the
that the tax collector of the city of Marys-
ville published in a specified newspaper a
notice stating that taxes fixed and levied
against the property of the plaintiff would be
delinquent on October 3, 1914; that thereaft-
er, said taxes not having been paid, said tax
collector published, for the proper time re-
quired by law, a delinquent tax notice which
provided for the sale of the property on the
3d of December, 1914; that at no time, how-
ever, did said tax collector make, or file

with the city clerk of the city of Marysville,
or with any other person, or in any office, or
at all, any copy of the publication aforesaid,
or any affidavit attached thereto, or any
that said
proof of any such publication;
sale was advertised and noticed for Decem-
ber 3, 1914, but on said last date was post-
poned till the 4th day of December, 1914;
that said tax collector neither gave, or caus-
ed to be given, any notice of the said post-
ponement of sale; that on December 4th a
sale was had and the property herein was
sold to defendant Johnson and a certificate
of sale issued to him; that on December 2,
1915, the plaintiff, through its attorneys, of-
fered in writing to pay defendant Johnson
the amount of money paid by him upon the
sale of the property, together with interest
thereon, and 50 per cent. additional for the
purpose of redeeming from said tax sale and
offered to pay any other sum that defendant
Johnson might claim was necessary for a re-
demption, but that said Johnson refused to
accept any sum except upon payment by
plaintiff to him of the sum of $11,000, be-
ing the value of certain personal prop-
erty assessed against the plaintiff in ad-
dition to the assessment of the real estate
and which purported to have been sold with
the real property to said defendant Johnson
at the tax sale above mentioned.

Upon the

refusal of the defendant Johnson to accept the redemption money tendered, plaintiff brought this action with the result above stated.

At the threshold of this appeal, we are asked to determine whether the law governing taxation and tax proceedings as it existed in 1876 applies and governs with reference to this tax sale made in 1914, or wheth

This action was brought to remove a cloud upon the title of the plaintiff to certain property in Yuba county through the issuance of a certificate of sale to defendant Johnson at a delinquent tax sale and to enjoin the issuance of a tax deed on the certificate. The court entered a decree declaring the tax sale and tax certificate issued thereon invalid, enjoined the issuance of a tax deed, but required that plaintiff pay to defendant John-er the general law on the subject of taxation son the sum of $641.91, the amount due for taxes and paid by him for the property at the tax sale. The defendant Johnson appeals from this decree and from an order denying his motion for a new trial.

and a sale for delinquent taxes existing when the sale was made in 1914 is to prevail. This question is sought to be presented under the charter of the city of Marysville. It appears that the city of Marysville operates un[1] The only attack made on this appeal der a charter granted by a special act of is on the findings. The court found that the Legislature in 1876 and which expressly

provided that the city should be organized, Political Code as it stood in 1876 and as inwith the powers and under the provisions of corporated into the charter of Marysville title 3 of the Political Code of this state. that "taxes shall become delinquent on the Section 4390, part of title 3 provides, among first Monday in January next thereafter," other things that: which, of course, as applied to the tax sale in question here was the first Monday in January, 1915. The sale, however, as we have pointed out, was made to the defendant Johnson on December 4, 1914, before the tax

"The mode of making out the list and of certifying the value of property, and of collecting all taxes is the same as prescribed in this Code for assessing and collecting the state taxes."

In harmony with this section, the city of es were delinquent, and necessarily the sale was void. It is insisted by the appellant Marysville has been levying and collecting its that, while no change was made in the methtaxes and making delinquent sales and cer-od or mode provided by the state law of taxtificates and deeds thereon to purchasers

under the tax law as it stood in 1876 unaffected by any change, alteration, repeal, or amendment to which the law as it then stood has been subjected during the course of these many years. The tax law as it then stood has been treated as incorporated in and as an inflexible part of the charter, and under the provisions of the tax law as it existed

in 1876 the taxes, sale, and tax certificate

ation, by various ordinances of the city of dates of assessments, delinquencies, sales, Marysville changes with reference to the and other matters provided for in the tax law as laid down in the Political Code in 1876, were made, among others, one with reference to the date, when the taxes should become delinquent, and that under said changes the sale in question made here on

December 4, 1914, was authorized. Assum

ing that the city of Marysville had the authority to change the state law with reference to taxation to the extent contended for by appellant, the trouble in this case is that

in question here were levied and made, and appellant Johnson defends his title acquired at the delinquent sale on the ground that it was made in full compliance with the tax law governing under the charter. On the there is no evidence that this was in fact part of respondent it is asserted that it was done. not the intention of the charter provision burden was upon the respondent to make Appellant likewise insists that the that the city should be bound inflexibly by the taxation law of 1876, but that it was sub-proof of such ordinances and relies upon the presumption that official duty has been reguject to the changes of the Code and the re- larly performed and that the law has been peal, modification, or amendment of the tax obeyed (Code Civ. Proc. §§ 1981, 1963, and law, and that the collection and levy of taxes section 1533, subd. 6) in aid of the validity and the proceedings under which the sale of the tax certificate. The burden was not here in question was made and the sale itself should have been had under the provisions of upon the plaintiff to make proof of such ordinances. It was the duty of the appellant to the general taxation law as it existed in show that the general law which governed upon the subject had been modified or changed. Nor in this case can the presumption which the appellant attempts to invoke of duty regularly performed and the law obeyed have any force. The general law required that the tax sale be made on the first Monday in January, 1915. The certificate of the

1914.

[2] As it is conceded that the city of Marysville for nearly half a century has been proceeding on the theory that the tax law of 1876 bound her in all tax proceedings, and under it has been making her assessments, levying her taxes, selling at delinquent tax sales, and making deeds to purchasers thereat, a court would be particularly loath to disturb this condition of affairs and unsettle titles based on tax sales heretofore made and would only do so when a clear necessity for deciding the point should arise, and we do not here find the existence of any such necessity. It is conceded if the tax law as it existed in 1914 applied to the city of Marysville, notwithstanding the charter provision, that the tax sale here involved was void because there is no pretense that any of the proceedings for taxation or collection of taxes or sales for delinquencies thereon were made under it. As to the tax law and procedure existing in 1876, which for present purposes we will assume governed as to the sale here made, we are satisfied that the tax sale and the certificate thereunder here in question were void for failure to comply with the law.

tax sale produced in evidence, together with the testimony of the officer who made the sale, which was the only evidence on the subject, show that the sale was actually made on the 4th of December, 1914, and at

a time when under the law the taxes were

not yet delinquent. Notwithstanding the absence of anything in the record with reference to the ordinances claimed to have been passed by appellant, we are asked to take judicial notice of the fact that such ordinances were passed. But we cannot take judicial notice of the ordinances of the city of Marysville in a proceeding originating in the superior court. If, in fact, there were ordinances of the city of Marysville existing which modified the provisions of the general law with reference to tax sales which were expressly incorporated into the charter of the city of Marysville, the burden of proof to show their existence was upon the appel[3-5] It is provided by section 3746 of the lant. Metteer v. Smith, 156 Cal. 574, 575, 105