Henderson v. Ward

JAMES, J.

This action was brought by plaintiff to secure a decree determining title to a certain town lot in the county of Los Angeles to be in the heirs of plaintiff’s intestate. Defendant’s asserted title was based upon a certain deed issued by the tax-collector of the county of Los Angeles following proceedings had upon an alleged sale to the state of the property mentioned for delinquent taxes in the year 1895. It was stipulated between the parties at the commencement of the trial that plaintiff’s intestate at the time of his death was the owner in fee of the lot referred to, unless such title had become divested by virtue of the issuance of tax-deeds. The deed as first made to the state of California by the tax-

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collector, and that subsequently made by the tax-collector to the defendant as purchaser of the tax title, were introduced in evidence without objection. A deputy county auditor was then called as a witness and testified that he had examined the assessment-roll for the year 1894; that he had examined each leaf appearing in the different volumes, and that he had not found any affidavit of the auditor of the county attached thereto, as required to be made by section 3732 of the Political Code. The record then contains the following paragraph, which is a part of the statement on motion for a new trial as settled by - the trial judge: “It was stipulated that all of said assessment-roll be considered as introduced in evidence; and said roll showed that certain pages and portions of said assessment-roll had been removed therefrom, including the last half of page 253, all of page 254, all of page 255, all of page 256, and the first half of page 257, in volume 13. ”• In the paragraph immediately following was this recitation: “And it further appeared therefrom that said pages did not now and never had any affidavit by the county auditor attached thereto or written thereon, though the lower half of said pages are missing, and were not shown to the court.” Those portions of the record which are referred to contained all of the facts necessary to be considered in determining the point chiefly relied upon by appellant. The findings and judgment of the trial court were in favor of the plaintiff, and defendant took his appeal from the judgment, and also from an order denying his motion for a new trial.

It is claimed that the evidence was insufficient to show the failure on the part of the auditor to make and attach his certificate to the assessment-roll for the year 1894. No evidence counter to that above referred to was introduced on behalf of defendant. But it is insisted that, as the record shows that certain pages and parts of others appeared to have been detached from the roll, in furtherance of the effect to be given the presumption that a public officer has performed his duty, it should be assumed that where a portion of the record was shown to be missing that it contained the certificate which the auditor was required under the law to annex to the assessment-roll. The trial judge had before him in physical form the evidence which the different volumes constituting the assessment-roll furnished, and that evidence is not