Interstate Realty & Improvement Co. v. Clark

[559]

NOURSE, J.

Plaintiff sued to quiet title to certain real property situated in Los Angeles County. The defendant answered, setting up

in haec verba

a tax deed from the state covering the same property. The plaintiff did not controvert the deed by affidavit or further pleading and the parties went to trial on the complaint and answer. Judgment was rendered for the plaintiff upon findings that the tax deed was void on its face, and from the judgment the defendant has appealed on a typewritten record.

The tax deed was executed on July 21, 1922, and recited that the property was regularly assessed for taxation in the year 1916 to Bernard Hiss, and was sold on July 5, 1922, to the defendant for nonpayment of taxes which had been levied in the year 1916. At the trial the plaintiff offered evidence to show that title to the property passed from Bernard Hiss to Citizens Trust and Savings Bank on October 3, 1913, by deed which was duly recorded on October 31, 1913. The plaintiff urges that the tax deed was void on its face because it appeared from the recitals therein that the property had not been assessed to the true owner; that it was sold for a delinquency of 1916, upon an assessment of 1915, and that the date of sale was not within the time fixed by the Political Code. The defendant insists that plaintiff’s failure to attack the deed by affidavit under section 448 of the Code of Civil Procedure is an admission that the tax deed was valid.

If under our rules of procedure the respondent could attack the validity of the tax deed upon any of the grounds noted, and, if any one of these grounds is sufficient to invalidate the deed, then the judgment must be sustained. Section 448 of the Code of Civil Procedure provides that when a written instrument is pleaded in the answer, the plaintiff is deemed to admit its genuineness and due execution unless he controverts it by affidavit. This, however, does not estop the plaintiff from disputing the invalidity of the deed upon any other ground than “its genuineness and due execution.”

(Moore

v.

Copp,