The tax, if not paid, would be a lien upon the real estate if it became delinquent, (Political Code, sec. 3717) and there was no way by which that lien could be avoided but by paying the whole amount of the tax, as well that which was illegally as that which was legally assessed.
The process of collecting taxes on both real and personal property is by a summary sale of the real estate, the delinquent having no opportunity to establish the illegality of the tax. (Political Code, sec. 3765.)
The Tax Collector's deed would be prima facie evidence of the regularity of the proceedings, and a cloud upon the title. (Political Code, sec. 3786.)
OPINION The Court:
The action is to recover from the defendant as Tax Collector, and from the sureties on his official bond, certain taxes alleged to have been illegal, which were paid under protest, and are claimed to have been paid under legal duress. If the finding as to the duress be conceded to have been sufficient, this finding, on the motion for a new trial, was attacked, on the ground that it was not justified by the evidence. After an examination of the evidence we find none to support this finding, and a new trial should have been granted on this ground.
Judgment and order reversed, and cause remanded for a new trial.