[Sac. No. 2892. In Bank.-November 12, 1921.]

STATE OF CALIFORNIA, etc., Appellant, v. THE ROYAL CONSOLIDATED MINING COMPANY (a Corporation), et al., Respondents.

[1] TAXATION INVALID SALE TO STATE CONTINUANCE OF LIEN JUDGMENT.-In an action by the state controller to recover the possession of real property which had been conveyed to the state for delinquent taxes, a judgment decreeing that the state had no interest in or lien upon the property because of the invalidity of the original tax sale to the state is erroneous, since the lien of the state remains as a burden on the property until discharge by payment or by a valid sale to the state.

[2] ID.-ACTION BY STATE-POSSESSION OF PROPERTY-AFFIRMATIVE RELIEF-RIGHT OF DEFENDANT.—In an action by the state controller acting under the provisions of section 3773 of the Political Code to recover the possession and the rents and profits of real property which had been deeded to the state for delinquent taxes, the defendant cannot, in the absence of statutory authority, convert the action into one to quiet title and obtain affirmative relief therein against the state.

[3] ID.-CONSENT OF STATE - PROVISIONS AUTHORIZING CROSS-COMPLAINTS INSUFFICIENT. The provisions of the law authorizing cross-complaints do not give the consent of the state to a crosscomplaint to quiet title in an action brought by the state controller, representing the state, for the possession and for an accounting of the rents and profits of real property deeded to the state for delinquent taxes.

[4] COURTS-ACTIONS CONCERNING POSSESSION OF REAL ESTATEJURISDICTION-CONSTITUTIONAL LAW.-Where the constitution itself has expressly defined and fixed the exclusive jurisdiction of its courts with reference to actions concerning the possession of real estate, the legislature cannot, under the general power to legislate, infringe upon the jurisdictional limits established by the constitution itself, by giving jurisdiction to superior courts of counties other than those in which the property is located. [5] TAXATION-RECOVERY OF POSSESSION OF REAL PROPERTY-JURISDICTION-SECTION 3773, POLITICAL CODE, UNCONSTITUTIONAL.-Section 3773 of the Political Code, in so far as it attempts to give jurisdiction to the superior court of Sacramento County of actions by the state controller for the possession of real property located in other counties which has been conveyed to the state for delin quent taxes, is void, in view of section 5 of article VI of the constitution, which gives exclusive jurisdiction of actions to quiet

title or for the possession of real property to the superior court of the county in which the property is situated.

[6] ID.-RECOVERY OF RENTS-LOCAL CHARACTER OF ACTION NOT DESTROYED. The local character of an action on behalf of the state to recover the possession of real property which has been conveyed to it for delinquent taxes, is not affected by the fact that the action is also one for the rents, issues, and profits of the property, since the action in so far as it relates to the rents is essentially one to quiet title within the meaning of the constitution. [7] PLEADING-ACTION FOR RENTS-ISSUE OF TITLE-CHARACTER OF ACTION. An action for rents and profits of real property where the right to the title is involved is not a transitory action.

APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge. Reversed.

The facts are stated in the opinion of the court.

U. S. Webb, Attorney-General, Charles P. Snyder, District Attorney, W. A. Gett and Downey & Downey for Appellant.

Alfred J. Harwood for Respondents.

WILBUR, J.-This action is brought by the controller of the state of California, acting under and by virtue of authority conferred upon him by section 3773 of the Political Code, to secure the possession of, and the rents, issues, and profits derived from, certain mining properties described in the complaint. Plaintiff alleges that the state of California ever since July 12, 1910, has been the owner of the real property described in the complaint, "being the same land conveyed by Louis Cadematori, Tax Collector of Calaveras County, State of California, to the State of California, on the 12th day of July, 1910," The defendants deny that the state of California was the owner of said properties on the twelfth day of July, 1910, or of any part thereof, and deny that the state of California is the owner of said real property or any part thereof. They deny that the land or any part thereof was conveyed by Louis Cadematori, tax collector, to the state of California on July 12, 1910, or at any other time. Defendants further aver that the Royal Calaveras Mining Company is the owner in fee simple absolute of the property in question. Defendants pray judg

ment that plaintiff take nothing by the action, and that defendants have judgment for their costs of suit. The court found that the state of California was not the owner of the property and stated its conclusions of law, as follows:

"I. That the plaintiff is not the owner of the real property described in the complaint, or any part or portion thereof, and that plaintiff has no right, title or interest in said real property.

"II. That the defendant Royal Calaveras Mining Company, a corporation, is the owner and seized in fee thereof, and is in possession and is entitled to the possession of the same and the whole thereof.

"III. That defendants are entitled to judgment and to their costs of suit."

In the judgment it is ordered, adjudged and decreed "that the plaintiff is not the owner of the real property described in the complaint or any part or portion thereof and that plaintiff has no right, title or interest in said real property. That defendant Royal Calaveras Mining Company is the owner and seized in fee of said real property described in the complaint and is in possession and is entitled to the possession of the same and the whole thereof." Then follows the judgment for costs.

...

The adjudication is, in effect, a judgment quieting the title of the defendant to the property in question against all claims of the state of California of every nature and description.

[1] The judgment here is particularly objectionable by reason of the fact that under our system of taxation the liens for taxes imposed for the five years immediately succeeding the sale and prior to the execution of the deed do not result in a sale and remain liens on the property until payment or a valid sale from the state of California. For the years subsequent to the deed to the state the property is not assessed at all on the theory that the property then belongs to the state, but if the deed to the state is void, the inchoate lien of the state for the taxes of succeeding years remains as a burden upon the property until discharged, and therefore a judgment against the state decreeing that the state has no interest in or lien upon the property in question because of defects in or the invalidity of the original tax sale to the state in 1905 is erroneous.

It is well settled that such relief will be denied to a property owner notwithstanding errors in the sale or in the assessment, if it can be ascertained from the assessment that the property owner is liable in justice and good morals to pay a tax thereon which has not been paid. (Savings & Loan Society v. Burke, 151 Cal. 616, [91 Pac. 504].) Under our system of taxation the lien therefor attaches on the first Monday in March of each year. "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; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof." (Pol. Code, sec. 3716.) Taxes upon personal property and upon the improvements upon real property are also liens upon the real property. (Pol. Code, secs. 3717 and 3719.) The lien attaches and remains upon the real estate until payment or sale, notwithstanding defects in the assessment, and if the sale is for any reason void, it, of course, does not discharge the lien. If the judgment in this case had been confined to the right of possession of the plaintiff, which depends upon the validity of the tax sale relied upon, the court could have entered such a judgment without requiring the defendant to pay the taxes upon the property. But where, as here, the judgment goes further, and awards affirmative relief to the defendants, it is clearly erroneous and must be reversed.

[2] The court by its judgment in effect treated the answer as a cross-complaint to quiet title and quieted the title of the defendant against all claims of the state of California. Although such relief was not expressly prayed for by the defendant. The state controller, under the provisions of section 3773 of the Political Code, represents the state for the purposes of requiring an accounting for rents and profits and securing possession of the real property, but he had no authority to represent the state as a defendant in a suit to quiet title, nor had the state authorized itself to be sued in an action to quiet title to determine the validity of liens for taxes or tax deeds issued to it. The defendant, of course, could resist the claims of the state controller made for possession and for an accounting of rents and profits on behalf of the state by any appropriate defense, including the defense of the invalidity of the tax deed (36 Cyc. 910, sec. 7a),

but it could not convert the action brought by the state controller into one against the state for affirmative relief by an application for affirmative relief. The claim against the state could not be maintained in the absence of statutory authority (People v. Talmage, 6 Cal. 256; People v. Miles, 56 Cal. 401; People v. Lee Chuck, 74 Cal. 32, [15 Pac. 322]), either by complaint or by cross-complaint.

The rule is thus stated in 36 Cyc. 910: "As a part of his defense defendant may maintain against the state a crossbill or cross-complaint, provided it relates only to the subject matter of plaintiff's suit and does not pray for original and independent relief; but he cannot maintain such crossaction for independent affirmative relief; nor can he, without • clear statutory authority therefor, claim the benefit of a setoff or counterclaim against the state constituting an independent cause of action, for this would contravene the rule that a state cannot be sued without its consent, although there is some authority to the contrary" (citing People v. Miles, supra).

[3] The general provisions of the law authorizing crosscomplaints do not give the consent of the state to such cross-complaint in an action brought by the state (People v. Miles, supra).

For the reasons above given it will be necessary to reverse the judgment in this case. If the case were to go back for a new trial, it would be proper for us to consider the various points raised as to the validity of the tax deed upon which the plaintiff relies; but we were in doubt as to whether or not the superior court of the county of Sacramento had jurisdiction of this action, notwithstanding the express provisions of section 3773 of the Political Code purporting to grant such jurisdiction. The question is as to the jurisdiction of the superior court under the constitution itself (art. VI, sec. 5). By this section of the constitution the superior court of the county in which the land is located is given exclusive jurisdiction of actions to quiet title to or for the possession of such real estate. As this action is clearly one for the possession of real estate, and as the question had not been presented by counsel, we called for argument as to the constitutionality of section 3773 of the Political Code, which expressly confers jurisdiction upon the superior court of Sacramento County, regardless of the location of the land.