tended by any agreement between the mortgagor and the mortgages to which they were not a party; nor by the voluntary act of the mortgagor in absenting himself from the State; and if the mortgagee allows the time of the statute of limitations to run upon the mortgage debt, their property cannot be taken from them and applied to the payment of the debt which, as to them, is barred by the statute. Assuming, therefore, that the appellants here acquired the mortgagor's equity of redemption, by the judicial proceedings founded upon the levy of an attachment, on the fifth of August, 1876, on the mortgaged premises, it follows-as the cause of action on the mortgage debt accrued on the second of January, 1874, and the action was not commenced until October 15, 1879-more than five years and nine months having run, that, under the rule of Wood v. Goodfellow, supra, the time of the statute had run, and the cause of action was barred, as to the subsequent lien-holders, notwithstanding the twenty-two months absence from the State had suspended the running of the statute of limitations as to the mortgagor. But it is claimed that the appellants were not subsequent lienholders upon the mortgaged premises, and have not acquired any interests in them subsequent to the plaintiff's mortgage, because, while it is true they commenced an action against Wright, the mortgagor, on the third of August, 1876, in which a writ of attachment was issued, which came to the hands of the sheriff of Fresno county to be executed according to law, he did not, in law or fact, levy the attachment upon the mortgaged premises. And the court finds: "The said sheriff did not, at any time, attach any portion of the real estate and lands described in the said mortgage, or any of the right, title or interest of the defendant, Wright, therein." The finding is founded upon the return of the officer to the writ; there was, therefore, no conflict of evidence as to the fact. The return is as follows: "I hereby certify that I received the annexed writ of attachment on the third day of August, A. D. 1876, and executed the same on the fifth day of August, A. D. 1876, by attaching all the right, title and interest of the defendant, J. W. A. Wright, of, in and to the following described property, to wit: All sec. 1, T. 12 S., R. 17 E., 639.48 acres, and all W. of sec. 6, T. 12 S., R. 18 E., 335.10 acres, situate, lying and being in the county of Fresno, state of California, by posting a notice and a copy of said attachment on the land described, and by filing in the office of the county recorder of the county of Fresno, for record, a copy of said attachment, and a notice of the attachment, with a description of the property attached annexed to said copy of attachment, this tenth day of August, 1876. "J. SCOTT ASHMAN, Sheriff. "By A. WITTHOUSE, Deputy Sheriff." This return was made under section 542, C. C. P., which required an officer to whom a writ of attachment was directed and delivered, to execute the same, if upon real property, by filing with the recorder of the county in which the property may be situated, (1) a copy of the writ of attachment, together with a description of the property attached, and, (2) a notice that it is attached, and by leaving with the occupant of the land, if the land be occupied, similar copies of the writ, description of the land and notice of the attachment, or, if the land be not occupied, then, by posting similar copies of the writ of attachment, description of the land attached, and notice of its attachment in a conspicuous place on the land. Whether the land in controversy was occupied or not does not appear by the return: but, assuming that it was not occupied, the return does not show that the officer posted "in a conspicuous place on the land," or at all, a copy of the description of the land in connection with a copy of the writ of attachment and of the notice that the land had been attached. The failure of the officer to do these things, as required by law, and in the order prescribed by law, was fatal to the validity of the levy by attachment: Sharp v. Baird, 43 Cal., 577; Main v. Tappener, Id., 206; and the performance of the acts done, as stated in the return of the officer, was insufficient to create a statutory lien by attachment upon the property. Nor was there any lien created on the property by the docketing of the judgment rendered in the attachment suit on the sixteenth of August, 1879, because the mortgagor had, in October, 1877, conveyed the equity of redemption in the mortgaged premises, and all his right, title and interest therein to Robert Watt, subject to the mortgage. As, therefore, there was neither statutory levy nor judgment lien, the appellants acquired no title to the mortgaged premises and the plaintiffs were entitled to the decree of foreclosure against them. There is no error in the record. Judgment and order affirmed. Ross, J., and MCKINSTRY, J., concurred. No. 9,433. SCHROEDER v. GRADY, TAX COLLECTOR, ETC. In Bank. Filed December 10, 1884. STATE BOARD OF EQUALIZATION-ASSESSMENT OF MORTGAGES -EQUALIZATION OF.-Under section 9, article XIII, of the constitution, the state board of equalization, in raising the assessment roll of a county, has power to increase the valuation of mortgages as already assessed. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant. The opinion states the facts. D. M. Delmas and J. P. Hoge, for the appellant. William Craig and E. C. Marshall, Attorney-General, for the respondent. THE COURT. Ross, J., DISSENTING. The questions involved and argued in this case were disposed of in People v. Dunn, 59 Cal., 328. With the conclusion reached in that case we are satisfied, and do not wish to change it. Judgment affirmed. Ross, J., DISSENTING. If the case of the People v. Dunn, 59 Cal., 328, in so far as it related to the assessment of mortgages, was rightly decided, the judgment now appealed from should be affirmed. I joined in that decision, but subsequent examination and reflection has convinced me that in the respect indicated the case was wrongly decided. The precise question is this: At twelve o'clock noon, of the first Monday in March, 1883, there was due upon a certain mortgage ten thousand dollars, and no more; the mortgage was assessed upon the assessment roll at ten thousand dollars; afterwards the state board of equalization increased the entire assessment-roll of the county fifteen per cent. Does this action of the state board operate upon this mortgage assessment? Proceeding upon the idea that it is the commercial value of the debt secured by the mortgage which forms the subject of the assessment, we held in the Dunn case the affirmative of the proposition. And therein, as I conceive, arose the error in the ruling. It is not the commercial value of the debt which forms the subject of the assessment. And this, I think, appears from the provision of the constitution itself. Section 4 of article XIII reads: "A mortgage, deed of trust, contract, or other obligation, by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property, and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured. If the owner of the property shall pay the tax so levied upon such security, it shall constitute a payment thereon, and to the extent of such payment a full discharge thereof; provided, that if any such security or indebtedness shall be paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year." As Here, then, is a provision to the effect that in the case of a debt secured by mortgage, the mortgage shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby: and a further provision that the value of the property affected by the morgage, less the value of the security, shall be assessed and taxed to the owner of the property, and the value of the security shall be assessed and taxed to its owner. the mortgage, which in the case under consideration is the security, is, for the purposes of assessment and taxation, to be deemed and treated as an interest in the property affected thereby, it follows that the value of the security, which, by the terms of the constitution, is required to be assessed and taxed to the owner thereof, is so much in value of the land as would be required to satisfy the mortgage. It is manifest that this cannot be more than the amount of the mortgage, while it may be less-less, for example, where the value of the property mortgaged has decreased to such an extent as to be less than the amount of the mortgage. It seems to me, therefore, that where, as in the case before us, the full amount due upon a mortgage has been assessed to the holder thereof, the order of the state board increasing the assessment roll of the county can no more apply to such an assessment than it can to the assessment of money already assessed at its legal value. That this is the view taken by the legislature of the provisions of the constitution upon the subject, appears from the statutory provisions in relation to assessments, and particularly by section 3,678 of the political code, which provides that "when partial payments have been made on a debt secured by mortgage or deed of trust, the owner is authorized to make the proper deduction, listing only the balance due on the first Monday in March." No one, I presume, would contend that the legislature, providing, as it did, that when partial payments have been made on a debt secured by mortgage, only the balance due should be listed, prescribed or intended to prescribe, that when no payments had been made, more than the amount due should be listed. For these reasons I dissent from the judgment. No. 8,342. HOBART V. TILLSON, TAX COLLECTOR, ETC. In Bank. Filed December 10, 1884. WRIT OF PROHIBITION FUNCTIONS OF-JUDICIAL AND MINISTERIAL POWER.-Under the constitution the only office of the writ of prohibition is to prevent courts or other officers from going beyond their jurisdiction in the execution of judicial power The legislature cannot enlarge or extend the office of such writ, so as to include ministerial functions. THE SAME TAX COLLECTOR-PROHIBITION DOES NOT LIE AGAINST. A tax collector is a ministerial officer and as such he cannot be restrained by prohibition from executing the functions of his office. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff and from an order denying the defendant a new trial. The opinion states the facts. J. F. Cowdery and David McClure, for the appellant. MCKEE, J. By section 9 of an act entitled "an act in relation to the assessment and collection of taxes upon personal property in the city and county of San Francisco," passed April 18, 1874, it was provided as follows: "Sec. 9. The assessor may, at any time prior to the fourth Monday in October in each year, specially assess any property which may have been omitted, and which shall not be entered upon the regular assessment-roll, and if he makes any such special assessment, he shall forthwith deliver a copy thereof to the tax collector, and the original to the auditor, who shall charge the tax collector with the amount of taxes due thereon; and all such special assessments shall be as valid and shall have the same force and effect as regular assessments." Acting under the provisions of that law the assessor of the said city and county, before the fourth Monday in October, 1880, made a special assessment of personal property, as belonging to the plaintiff in this case, which had not been entered upon, but which was omitted from the regular assessment roll which had been made and returned by the assessor for the fiscal year 1880-81. A copy of that special assessment came to the hands of the tax collector to collect, according to law, the amount of the taxes levied thereon. But upon a verified petition to the effect that the assessment was and is wholly void, and that the taxes levied thereon were also void, being filed and presented to the superior court of said city and county, a writ of prohibition was issued restraining the tax collector from collecting said taxes; and upon a final hearing the court perpetually prohibited the tax collector from collecting the same. In so ruling the court erred. In the case of The Farmers' Co-operative Union v. Thresher, 62 Cal., 407, which was a petition for a writ of prohibition to restrain a tax-collector from proceeding to sell personal property for an alleged illegal tax, we held, upon the authority of Cameron v. Kenfield, 57 Cal., 550, that the legislature could not enlarge or extend the office of the writ of prohibition, so as to include ministerial functions. The only office of the writ is, therefore, to prevent courts or other officers from going beyond their jurisdiction in the execution of judicial, not ministerial, power. A tax collector is a ministerial officer, and as such he cannot be restrained by prohibition from executing the functions of his office. When process comes to the hands of a ministerial officer for service according to law, the duty devolves upon him to serve it, and he must do so at his risk. If the process be voidable or void, or if the acts of the officer under it are illegal, the law provides ample and adequate remedies for redress, to which resort must be had; but |