Bussenius v. Warden

CONREY, P. J.

Action to quiet title. The plaintiffs are the owners of the described real property unless their title has been divested by reason of a tax deed dated and executed on the second day of July, 1920, by the tax collector of the county of Los Angeles to Grace P. Warden, who is defendant and appellant herein.

The defense to the action was founded on said deed, of which a copy is annexed to the answer, as exhibit “A” thereof. .The plaintiffs did not, after receiving a copy of the answer, file with the clerk any affidavit denying the genuineness or due execution of the deed. Section 448 of the Code of Civil Procedure provides that when these conditions exist in the record of an action “the genuineness and due execution of such instrument are deemed admitted.” At the trial of the action appellant moved for judgment on the pleadings, and argued that because of the admission of fact above stated, she was entitled to judgment in her favor. Appellant now contends that the court erred in denying said motion.

[719]

We think that the court did not err in denying the motion. Assuming that the deed vested title in the grantee at the time of its execution, it might be that the plaintiffs had become the owners of the property when, more than a year after the date of the deed, they filed their complaint in this action. Moreover, when respondents, by failing to deny, admitted the genuineness and due execution of the deed, they did not thereby lose the right to question the legal effect of the instrument, or their right to introduce evidence re-establishing their title, notwithstanding the existence and adverse effect of said deed.

This property had been sold to the state for delinquent taxes of the year 1914, the tax sale taking place on the first day of July, 1915. Under the law existing at that time, and continued in force, with some changes of detail, in the year 1919, it was provided that where property theretofore sold to the state for delinquent taxes has remained unredeemed for a period of five years, the tax collector, by following certain prescribed proceedings in connection with his annual delinquent tax sale, shall sell such property at public auction to the highest bidder for cash. (Pol. Code, sec. 3771; Stats. 1919, p. 142.) Section 3785b of the Political Code (Stats. 1913, p. 558) provides that when property has been sold to a purchaser at delinquent tax sale, other than the state of California, in pursuance of section 3771 of this code, the tax collector must execute a deed to the purchaser, and that said .deed “shall be in substance, and may be in form as follows: . . . That whereas the real property hereinafter described was duly assessed for taxation in the year 19— to-(stating name as on assessment-roll) and was thereafter on the-day of-, 19—, duly sold to -by-, tax collector of said county of -, for nonpayment of delinquent taxes which had been legally levied in said year 19—, and were a lien on said real property, the total amount for which the same was sold being - . . . Now, therefore,” etc. The last sentence of said section 3785b reads as follows: “The provisions of sections 3786 and 3787 of this code are hereby made applicable to the deed herein provided for.”