Page:Federal Reporter, 1st Series, Volume 10.djvu/651

 MOEA V. NUNBZ. 639 �when it subsequently reversecl the judgment for the tax, as it did on the ground that there was no averment in the complaint of an ina- bility to otherwise collect the taxes, which averment was held to be necessary to show a cause of action. People v. Pico, 20 Cal. 595. What, then, are the provisions and limitations of that act ? One of the provisions is that "judgments rendered in such cases in the dis- trict court shall be docketed and beeome liens upon all propcrty of the defendant liable to taxation, and may be enforeed against the same." St. 1861, p. 472, § 4. AU pro^ierty of the defendant, then, may be made liable to the personal judgment. Another provisioji is that the Code of Civil Procedure is "made applicable to the proceed- ings under this act, * * * so far as the same is not inconsistent leith the provisions of this act," (Id. § 5 ;) and "any deed derived from a sale of real propcrty under this act shall be conclusive, etc. ♦ * * "Provided, that the sheriff, in selling said propcrty, shall onhj sell the smallest quamiiy chat any purchaser will take and pay the judgment and costs. Id. § 6. There is no remedy or proceeding to enforce civil rights under our laws exeept the Code of Civil Procedure, and such other proceedings as are expressly provided for in some other general or special statute. This act, as is seen, therefore, authorizes the personal judgment for a tax, which may be enforeed against real property other than that assessed, the Code of Civil Pro- cedure to enforce the tax being applicable only "so far as the same is not inconsistent with the provision of this act." Any deed derived from sale of real property under this act "shall be conclusive," etc. : "provided, that the sherifi, in selling, shall only sell the smallest qimntity that any purchaser will take and pay the judgment and costs." This is expressly prohibitory language, and is wholly inconsistent with the provisions of the Civil Code authorizing a sale upon execu- tions to the highest bidder, and with any other provisions of our law authorizing a forced sale of real property to satisfy any judgment or demand. It takes away the power of the sherifi to sell in any other mode. It governs and controls the sale, and a sale in the prohibited mode is necessarily void. The sale was for a tax, merged, it is true, in the judgment. But it was that very case, and no other, that the statute was dealing with; and a sale upon an execution issued upon a judgment for the tax so merged, was the kind of sale at which the prohibition was expressly aimed. It is also true that the execution does not disclose the faet that the judgment was for a tax, but the judgment record does, and that is notice to all the world. ��� �