Munro v. Whitlow

NOTJRSE, J.

Plaintiffs sued in ejectment to recover possession of certain real property situated in the city of Berkeley, county of Alameda. The complaint was in the ordinary form, alleging that the plaintiffs were the owners by title, in fee simple absolute; that, on or about July 22, 1919, the defendants wrongfully and without right entered into the possession and occupancy of said premises and excluded plaintiffs therefrom; and that the value of the use and occupation thereof was seventy-five dollars a month. Prayer followed that plaintiffs be put in possession and that they recover the value of the use and occupation from the date of the ouster.

Defendants answered jointly denying the allegations of the complaint, and, in a separate answer, alleged that defendant George Biaggi purchased the property from the state at a public tax sale held on July 10, 1919; that the sale followed -the failure to pay the taxes assessed thereon for the year 1913; that on July 17, 1919, he obtained a deed thereto from the tax collector and ever since has been the owner in fee simple and in the possession of the premises; and that plaintiffs claim some interest or estate therein adverse to said defendant. Prayer followed for a decree adjudging said defendant to be the owner in fee of the property, adjudging that plaintiffs have no estate or interest therein, and for general relief. At the opening of the trial it was stipulated that all the allegations of the answer be deemed denied and the trial proceeded on the issues so framed.

The pleadings present a cause in ejectment on the part of plaintiffs, a denial and a separate answer in the nature of a cross-complaint to quiet title on the part of defendants, and a trial on these mixed issues of law and equity without objection from either party. The trial court found that the tax deed upon which defendants relied was void on account of various irregularities in the tax proceedings and gave judgment for plaintiffs, decreeing that plaintiff Maud May Munro was the owner of a life estate in the property; that plaintiff Barbara California Munro was the owner of a remainder interest subject only to said life estate; and that defendants have no right, title, or interest therein. The

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equities of the case were adjusted by-awarding to defendant George Biaggi the sum paid into court by plaintiffs representing the amount of his outlay as a result of the tax sale.