O'Reilly v. All Persons, Etc.

BURNETT, J.

The action was brought under the Mc-Enerney Act to establish title to two parcels of land. Appel

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lants in their answer denied that plaintiff was the owner or in the actual possession of parcel A of the said real estate, and averred that they are and were at the beginning of the action, and had been long prior thereto, the owners of said parcel in fee simple absolute as tenants in common and in the possession thereof, and prayed that plaintiff take nothing as to said parcel, but they did not ask for affirmative relief. No question was raised as to plaintiff’s ownership of the other parcel, and it is not involved in this appeal.

At the trial it developed that plaintiff claimed said parcel A under a tax title, and it was admitted that if said tax title was invalid, then appellants were the owners of said tract as claimed in their answer. The court found that the said defendants were at the time of the said tax sale, and ever since have been, the owners in fee simple absolute of said real property, and, further, that the said tax sale and the said tax deed executed pursuant to said sale and purporting to convey said property were and are invalid. These findings have not been questioned, the plaintiff not having moved for a new trial or appealed. The court further found, however: “That the said plaintiff purchased said property from the state of California at a tax sale held on the seventh day of February, 1912, and paid for said property at said sale the sum of $740 in gold coin of the United States of America, and that said plaintiff has since said tax sale aforesaid, expended the sum of $15.43 in the payment of taxes regularly levied upon said property,” and the court thereupon decreed that plaintiff have judgment against said defendants for the sum of $740 and interest, the further sum of $15.43, and that said judgment be a lien upon said parcel of real property, and that said defendants be directed to pay the same within sixty days, and in the event of their failure so to do, that plaintiff be entitled to have a writ of execution to enforce the same, and that until said payment be made, the judgment in favor of defendants be of no force and effect.

The court did not find the amount of the taxes, penalties, interest, and costs which were chargeable upon said lands at the time of the said tax sale, but it was conceded at the trial that the amount of the same was $45.82.