Warden v. Brandes

California Court of Appeal Feb 6, 1930 No. Docket No. 3895.Published

Before: Burroughs

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Holding. The court held that a nonsuit was properly granted because the plaintiff failed to provide extrinsic evidence to reconcile a discrepancy between the property description in the complaint and the description in the assessment deed.

Issues

Whether a variance between the property description in a complaint and an assessment deed justifies a nonsuit when no extrinsic evidence is offered to identify the parcels as the same.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The motion was made on the ground that lot seventy-eight described in the complaint and fractional lot 78 described in the assessment proceedings and in the plaintiff’s deed, were not the same property.”

BURROUGHS, J.,

pro tem.

The plaintiff commenced this action to quiet her title to “Lot Seventy-eight of Tract 1889 as per Map recorded in Book 21, page 29 of Maps, Records of Los Angeles County.” The defendant answered denying the plaintiff’s ownership and alleged title in herself.

At the close of plaintiff’s ease the defendant moved for a nonsuit which was granted and judgment of nonsuit was thereupon entered. The plaintiff appeals therefrom.

In support of her claim of title plaintiff offered and the court received in evidence records of proceedings of the city of Los Angeles, creating a certain sewer assessment district; also records purporting to levy an assessment upon the land in said district including

fractional

lot 78 of Tract 1889 as per map recorded in book 21, page 29, of maps, records of Los' Angeles County. The plaintiff thereupon offered and the court received in evidence a deed made and executed by the treasurer of the city of Los Angeles to the plaintiff herein. Said deed recited the various proceedings in the matter of the above-mentioned assessment district and also the levying of an assessment thereunder and the sale to the plaintiff of “Fractional Lot 78, Tract 1889, Map Book 21, page 29, Records of Los Angeles County” for an unpaid assessment of $55.98. The plaintiff thereupon rested and on motion of the defendant the nonsuit was granted. The motion was made on the ground that lot seventy-eight described in the complaint and fractional lot 78 described in the assessment proceedings and in the plaintiff’s deed, were not the same property.

It seems to be conceded by both parties that there is a variance between the description contained in the complaint and that described in the assessment proceedings and the deed. We are of the opinion that such is the case.

[746]

However, it has been held that where a description of land in a deed is

prima facie

insufficient to identify the property intended to be described, extrinsic evidence is admissble as a means of identification.

Warden v. Brandes

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BURROUGHS, J.,

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