Thill v. Moulthorp

LENNON, J.

This is an action under section 738 of the Code of Civil Procedure to determine adverse claims to real estate. Defendant Kipp answered the complaint, denying the facts relied upon to establish plaintiff’s interest in the property and setting up an estate therein in himself. Plaintiff based his right to recover judgment upon certain tax deeds and relied upon the recitals in the said deeds as

prima facie

evidence of compliance with the requirements of the statute pursuant to which the proceedings leading up to the levy of the tax had been had, namely, The Local Improvement Act of 1901 (page 34). Judgment was entered in favor of plaintiff, and defendant Kipp appeals on the ground that the recitals in the said deeds are not

prima facie

evidence of compliance with the requirements of the statute in question.

[1]

The provisions of the Political Code by which tax deeds are made

prima facie

evidence of compliance with the requirements of the statute pursuant to which the proceedings leading up to the levy of the tax have been had, by their own terms, apply only in the case of state taxes. (Pol. Code, sec. 3786.) Plaintiff and respondent contends, however, that these provisions are applicable in the present case by virtue of section 871 of the Municipal Incorporation Act. (Stats. 1883, p. 273; Stats. 1905, p. 89.) That section, as amended in .1905, provides that “All deeds made upon any sale of property for taxes or special assessments

[734]

under the' provisions of this chapter, shall have the same force and effect in evidence as is or may hereafter be provided by law for deeds for property sold for nonpayment of state taxes.”

[2]

The difficulty with plaintiff’s contention. lies in the fact that this provision, by its plain terms, applies only to tax deeds “made upon any sale of property for -taxes or special assessments under the provisions of