Biaggi v. Mainero

ST. SURE, J.

This is an action to quiet title to a tract of land containing 28.77 acres in Santa Clara County. Judgment was for defendants and plaintiff appeals on the judgment-roll.

The complaint is in the usual form. Defendants G-. Mainero, Margherita Mainero, and Peter Plumaria an

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swered, denying ownership in plaintiff of any of the property and setting up their own ownership of a part of it, subject to a certain pipe-line right. They disclaimed ownership in a portion of the property lying “west of Llagas Creek.” Bmelia Piumarta answered separately, denying all of the allegations of the complaint. All of the defendants joined in an amendment to their answers, alleging, on information and belief, that plaintiff’s claim of owership was based upon an alleged sale of the land for delinquent taxes of 1914-15, and alleged conveyances to plaintiff’s predecessor, in interest pursuant to such alleged delinquency and sale, and tender to plaintiff of taxes, penalties, and costs chargeable upon the land which plaintiff or his predecessor paid at such alleged sale or afterward on the faith of it, with legal interest from the time of payment.

The action was dismissed as to all defendants save the Maineros and Plumarias, and trial was had upon the complaint and answer and amendment to the answer. The court decreed merely that plaintiff was not the owner, in possession or entitled to possession of the property described; and that defendants have judgment for costs.

Plaintiff contends, first, that inasmuch as there was a disclaimer as to a portion of the land, plaintiff was entitled to a decree quieting his title as to that portion as against the parties making the disclaimer; second, that the judgment should have been conditioned upon restoration to the plaintiff of the money spent in pursuit of the tax title.

The first point is disposed of by the cases of

Rockey et al.

v.

Vieux et al.,

179 Cal. 681 [178 Pac. 712];

Sears