ment lienor, in the absence of other remedy, to maintain an independent action to foreclose his lien, there can be none of his right to do so in an action brought to foreclose a superior encumbrance in which action he was made a party defendant: Hibernia Savings etc. Soc. v. London etc. Fire Ins. Co., 138 Cal. 257, 71 Pac. 334, 335A.

Liens-65

CHAPTER 9.

TAX LIENS.

637. Lien of tax upon immovable property. Of tax upon improvements.

638.

639. Of movable property tax.

640.

641.

Of poll tax.

Extinction of lien.

642. Time of commencing foreclosure action.

637. Lien of Tax upon Immovable Property.1

Every tax upon immovable property constitutes a lien against the taxed property which at

1 Political Code, section 3718 provides: "Every tax upon real property is a lien against the property assessed; . . . . which several liens attach as of the first Monday of March in each year."

The liens provided by Political Code, sections 3716, 3717, and 3718, "attach to the property of railroad companies owning and operating roads situate in two or more counties, the same as to all other property in the state. It will thus be seen that, for the taxes upon this class of property, the state and every county in it has the same security that is provided for taxes upon all other property in the state-a lien upon all property of the owner-not even excepting that which is by law exempt from execution; and by other provisions of the statute it is made a first lien; so that, in no event can the state be defeated in the collertion of its taxes, if its own proceedings in the assess

taches as of the first Monday in March of the calendar year in which the tax was assessed.3

638. Of Tax upon Improvements.4

Every tax due upon improvements upon immovable property assessed to other persons than the owners of the immovable property constitutes ment, levy, and collection have been lawful': People v. Central Pac. R. R. Co., 83 Cal. 393, 407-408, 23 Pac. 303.

2 Query: Whether a tax levied for municipal purposes, constitutes a lien under this and sections 638 and 639 following? City of San Diego v. Higgins, 115 Cal. 170, 176, 46 Pac. 923.

3 This proposition seems to le recognized in the

cases.

Thus in San Gabriel Valley Land etc. Co. v. Witmer, Bros. Co., 956 Cal. 625, 626, 29 Pae. 500, 31 Pac. 588, the court said: "The taxes for each fiscal year accrue on the first Monday of March preceding, and when assessed, take effect and become a lien from that date."

In McPike v. Heaton, 131 Cal. 109, 82 Am. St. Rep. 335, 63 Pac. 179, the court recognized that a tax lien for taxes for the fiscal year commencing July 1, 1897, the taxes being levied on November 29, 1897, attached on March 1, 1897. In this case where a person sold land on March 24th after the accrual of the lien, covenanting that the land was free from liens, and subsequently the purchaser sold the land to a third person who paid the taxes, the court held that the third person could not recover the taxes from the original vendor as a covenant that land is free from encumbrances does not run with the land or pass to the assignee, but was personal to the first purchaser.

4 See Political Code, section 3718, except first clause.

a lien against the property, unless nontaxable," and improvements, which attaches as of the first Monday in March of the calendar year in which the tax was assessed.

639. Of Movable Property Tax.

Every tax due upon movable property constitutes a lien against the immovable property of the owner of the movable property, which attaches at 12 o'clock noon of the first Monday in March in each year.

640. Of Poll Tax.

A delinquent poll tax, together with one-third the amount thereof in addition thereto, constitutes a lien against the property assessed to the person liable for the payment of the poll tax which attaches from the first Monday in March in each year.s

641.

Extinction of Lien.9

A tax lien is extinguished only (1) by the payment of the tax, or

5 A tax upon improvements upon nonassessable public lands cannot become a charge against the land: See Political Code, section 3650, subdivision 12, last sentence; People v. Smith, 123 Cal. 70, 76, 55 Pac. 765. 6 See section 637, note 3, above.

7 Folitical Code, section 3717, as amended in effect March 22, 1880.

s Political Code, section 3860, in part.

(2) by the sale of the liened property in satisfaction of the demand secured by the lien, [or (3) by the lapse of the time within which a foreclosure action can be commenced].10

642. Time of Commencing Foreclosure Action. An action to foreclose a tax lien must be commenced before the expiration of three years after the right of action accrued.11

9 Political Code, section 3716, provides: "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 the 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."

10 In City of San Diego v. Higgins, 115 Cal. 170, 46 Pac. 923, the court in effect holds that the lapse of the time for commencing an action does not extinguish the lien, but merely bars the remedy; but Mr. Justice Temple, in his dissenting opinion, clearly shows that a legal right without a remedy is a contradiction in terms.

11 Action must be Commenced Within Three Years. An action to foreclose a tax lien is an action upon a liability created by statute other than a penalty or forfeiture, and is barred under the Code of Civil Procedure, section 338, subdivision 1, upon the lapse of three years from the time the right of action accrued: City of San Diego v. Higgins, 115 Cal. 170, 46 Pac. 923, per Henshaw, McFarland, Garoutte, Van Fleet, and Harrison, JJ.; Temple, J., dissenting.

In Lewis v. Rothchild, 92 Cal. 626, 629, 28 Pac. 805, it was held that the action to foreclose a tax lien was not barred by any of the limitations contained in the Code of Civil Procedure, but this state ment was overruled and the case distinguished.