DEPARTMENT No. 1.

[Filed July 20, 1880.]

No. 6480.

JOSEPH BOEDFIELD, RESPONDENT,

VS.

WALTER G. READ ET AL., APPELLANTS.

U. S. BANKRUPT LAW-STATE INSOLVENT LAW. The United States Bankrupt law did not repeal the State Insolvent law, but only suspended its action; and the repeal of the Bankrupt law "revived" the State Insolvent law. Hence proceedings under the latter after the suspension ceased are valid; and a debt founded on a contract made while the Insolvent Act was suspended by the Bankrupt law could be discharged under the provisions of that Act after it came into renewed operation.

Appeal from the District Court of the Tenth Judicial District, Colusa County.

J. T. Harrington, for respondent.

A. L. Hart, for appellants.

MCKINSTRY, J., delivered the opinion of the Court:

The indebtedness set forth in the complaint was all contracted before the first day of September, 1878-the date of the repeal of the bankrupt laws of the United States.

The answer avers that the defendants have been discharged from all their indebtedness under the provisions of the State Insolvent law, and contains a history of the proceeding by which that discharge was procured, from the application to the final discharge.

The case was sumbitted to the District Court on the pleadings, upon motion of plaintiff; and the Court rendered its judgment in favor of plaintiff, holding that indebtedness incurred before the first day of September, 1878, could not be discharged under the State law.

The point made by counsel for the respondent is that the State law, in relation to insolvent debtors, was suspended by the national Bankrupt Act; and that to construe the State law in such a manner as to authorize the, discharge under it of indebtedness incurred during its suspension, would be impairing the obligation of contracts within the meaning of the inhibition upon that subject which is contained in the Federal Constitution.

The United States and the several States have a concurrent power to enact a bankrupt law or an insolvent law. "Congress shall have power **to establish** uniform laws on

the subject of bankruptcies throughout the United States." (Con. U. S., Art. I, Sec. 8.) There can be no doubt that, so. far as State insolvent laws prevent, or even impede, the operation of a United States bankrupt law, they must yield, in order that it may fully accomplish its object of establishing a uniform system throughout the United States. (Ex parte Giegenfass, 2 Iredell.) It may be admitted also that a United States law "suspends the operation" of a State insolvent law. This view is probably sufficiently sustained by the consideration that any proceedings taken under the State law might, and almost necessarily must, interfere with the enforcement of the more general statute of the United States. The meaning of the expression of Chief Justice Marshall (in Sturgis vs. Crowinshield, 4 Wheaton), "the right of the States to pass a bankrupt law is suspended by the enactment by Congress of a general bankrupt law," is plain enough. The meaning of the phrase, "a bankrupt Act suspends the operation of a State insolvent law," is explained by the cases in which a like phrase is employed. The passage of a law of the United States providing for a uniform system for the relief of bankrupts does not repeal. The repeal of the law providing the uniform system does not re-enact the State Insolvent law. Such was not the meaning of the Supreme Court of Massachusetts in Judd vs. Ives, 4 Met., where it was said: "The Act of Congress does suspend the operation of the law of this Commonwealth. But we are nevertheless of the opinion that this consequence is limited to cases instituted under the insolvent laws subsequent to the period when the Bankrupt law went into operation, and that it cannot supersede or suspend proceedings rightfully commenced under the Insolvent Act prior to the time of its going into operation." In the subsequent case, Austin vs. Caverly, 10 Metcalf, the same Court held that a debt 'founded on a contract made while the Insolvent Act was suspended by the Bankrupt law, could be discharged under the provisions of that Act after it came into renewed operation. (See also Atkins vs. Spear, 8 Met. 491.)

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A law may subsist, although any or all persons be prohibited for a time from taking advantage of its benefits. The operation of the insolvent law was suspended in the sense that no proceeding could be commenced for a discharge under it while a general bankrupt law existed. The moment the law could be resorted to by any one, it could be resorted to by all to whom, by its letter, its benefits were extended. The statute "for the relief of insolvent debtors" (Statutes 1852, p. 69) declares: "Every insolvent may be discharged

from his debts." Defendant comes plainly within this provision. If the Insolvent law "revived" or came again "into operation" (whatever the form of expression), by the repeal of the Bankrupt law of the United States, we must construe it as if it had never been suspended, so far as proceedings initiated after the suspension ceased are concerned. No person could commence proceedings for a discharge while the Insolvent law was suspended-this, and nothing more. Judgment reversed and cause remanded. We concur: Ross, J., McKee, J.

TAX PROCEEDINGS. Are in invitum, and to be valid must be in strict accordance with the statute.

DESCRIPTION OF LAND IN ASSESSMENT ROLL. The description must be certain of itself, and not such as to require evidence aliunde to render it certain. What would be a good description in a deed might be bad in an assessment roll. The owner and all other persons inspecting the roll should be able to know what particular land is assessed.

VOID ASSESSMENT. Assessment will be void if land on the roll be not clearly described.

Appeal from the District Court of the Sixth Judicial District, Sacramento County.

P. Dunlap, for respondent.

Geo. Cadwalader, for appellants.

Ross, J., delivered the opinion of the Court:

The motion to dismiss the appeal was virtually passed upon, and was denied by our predecessors.

The only question upon the merits of the cause relates to the sufficiency of the description of the property assessed, which is as follows: "1013 86-100 acres of land, being a portion of the San Pedro Rancho, bounded as follows: North, by the lands of James Regan and others; east, by the line of the San Pedro Rancho; south, by the Pacific Ocean; and west, by the lands of Richard Tobin. Also 15 acres of land, being a portion of the San Pedro Rancho, bounded on the north by the lands of Richard Tobin; south, by the lands of

Felton and Patterson; west, by the Pacific Ocean; east, by the lands of Richard Tobin."

The statute in force at the time the assessment in question was made required that the land should be assessed "by township, range, section, or fractional section; and when such land is not a Congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon."

It is hardly necessary to say that tax proceedings are in invitum, and to be valid must be in strict accordance with the statute. It may be conceded that the description here in question would be good in a deed or agreement between private persons; but that is not the test of sufficiency in a case of this nature. In Blackwell on Tax Titles, page 124, it is said: "A description sufficiently certain to convey land between man and man, and which, if contained in an agreement to convey, would authorize a Court of equity to decree a specific execution, will not answer in the proceedings to enforce the collection of a tax. In the case of private transactions the Courts, in construing the document, endeavor to collect the intention of the parties, and give that intention effect. If a latent ambiguity exists in the description, parol evidence is resorted to for the purpose of explaining it and giving to the intention of the parties complete operation; and when the estate intended to be conveyed is sufficiently described in the deed or other writing, the addition of a circumstance, false or mistaken, will be rejected as surplusage" in order to carry that intention into effect. But in these tax proceedings the owner of the estate has nothing to do; he intends nothing. The Government is acting, through its agents, in hostility to him, and with the view of enforcing the collection of a tax from him."

In Keane vs. Canovan, 21 Cal. 302, the Court quoted, with approval, the rule as stated by Blackwell, and said: "It is not sufficient that a similar description, in a contract or conveyance between individuals, might be shown by parol evidence to have been intended for particular premises. The description must be certain of itself, and not such as to require evidence aliunde to render it certain. * * * Certainty in the description is required to apprise the owner that his property is advertised for sale, and to enable him to prevent the sale by the payment of the taxes thereon, and to impart information to bidders of the actual extent and location of the premises to be sold. All subsequent proceedings depend upon this certainty. An inaccurate or an uncertain descrip

tion defeats every step subsequently taken; and, as we have already said, the uncertainty cannot be cured by evidence aliunde." So in People vs. Cone, 48 Cal. 429, in speaking of the assessment there in question, the Court said: "The assessment sought to be enforced in this action is void on its face. It describes by metes and bounds a large tract of land, as that which is assessed, but excepts from the assessment several parts of the larger tract which had been previously conveyed; and the excepted portions are not described by metes and bounds, nor in any manner, except by a reference to the unrecorded deeds. It is impossible to ascertain from the assessment, on its face, what particular lands were intended to be assessed and what excepted. In order to determine with any reasonable certainty the particular tract described, it would be necessary to make a laborious search of the records, and possibly to invoke the aid of a surveyor. The deeds referred to in the assessment might prove, on examination, to be so vague in the descriptive calls as to leave it doubtful what lands they include. * * The statute requires that the description, either by common designation or name, or by metes and bounds, shall appear on the face of the assessment roll, so that by inspecting it the owner and all other persons may know what particular land is assessed. This assessment is void, for a failure to comply with the statute in this respect."

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In the assessment under consideration the first piece of property is described as being bounded "on the north by the lands of James Regan and others." A more uncertain and indefinite boundary than this can scarcely be conceived. Who the "others are whose lands are said to bound the tract attempted to be assessed does not appear upon the face of the assessment; and extrinsic evidence, as we have seen, cannot be resorted to for the purpose of showing.

The south boundary of the second piece of property attempted to be assessed is but little, if any, more certain. Neither description is sufficient to constitute a valid assessment. (See authorities ante. Also, People vs. Pico, 20 Cal. 595; People vs. Mariposa County, 31 Cal. 196; Kelsey vs. Abbott, 13 Cal. 609; People vs. Hyde, 48 Cal. 431; San Francisco vs. Quackenbush, 53 Cal. 52; The Bank of Utica vs. Mersareau, 3 Barb. Ch. 528; Perkins vs. Dibble, 10 Ohio, 433; Tripp vs. Ide, 3 Rhode Island, 51; Amberry vs. Rodgers, 9 Mich. 332.)

Motion to dismiss the appeal denied. Judgment and order reversed, and cause remanded.

We concur: McKinstry, J., McKee, J.