Griggs v. Hartzoke

KERRIGAN, J.

This is an appeal by plaintiff from the judgment in favor of defendant, also from an order denying her motion for a new trial and from an order denying her motion to vacate the judgment, amend the conclusions of law, and enter a different judgment, the last-mentioned motion being made under sections 663 and 663A of the Code of Civil Procedure.

The complaint in this action is so framed as to cover both the elements of an action in ejectment and an action to quiet title to the land described in the complaint, which is situated within the city of San Jose. Defendant answered, and also filed a cross-complaint, setting up title in himself by virtue of a tax deed.

The facts presented by the record are briefly as follows: On July 26, 1897, plaintiff purchased the property, and on March 1, 1898, it was assessed to her at $4,260. According to the assessment the amount of taxes on said property for the year 1898 was, for county purposes $26.07, for city purposes $54.74, and for state purposes $20.79. Said taxes were not paid, but became delinquent, and costs, penalties and charges accrued thereon in the further sum of $13.17. Nearly five months after plaintiff purchased the property, to wit: December -21, 1897, she delivered to Eveline Dubois a mortgage thereon as security for the payment of $8,000, which was not recorded until March 12, 1898. The mortgage being for more than the assessed value of the property, it may be supposed that

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plaintiff assumed that the mortgagee would have the mortgage assessed and pay taxes thereon, and that there would be no assessment against the land as distinct from the mortgage. However that may be, taxes on the property for the year 1898 were not paid, nor were they paid for any year thereafter up to and including the year 1904. The taxes for the year 1898, as mentioned above, having become delinquent, the county tax collector on June 27, 1899, duly executed a certificate of sale of said property for nonpayment of city, county and state taxes for that year to the state of California. Subsequently on July 25, 1904, he made and executed a deed to the state for the nonpayment of such taxes. Thereafter the tax collector, pursuant to an authorization from the controller, advertised the property for sale and sold the same to the defendant.