Crocker v. Dougherty

SMITH, C.

This is a suit to quiet title to land. ' The judgment in the court below was for plaintiff. The appeal is from an order denying the defendant’s motion for a new trial. The complaint was filed May 5, 1899.. The answer sets up three alleged “liens” on the property, of the aggregate amount of $176.08, based on certificates of tax-sales to one Bosworth, defendant’s assignor, of dates, March 30, 1885, March 26, 1886, and April 5, 1887, respectively. There is no prayer for affirmative relief in the answer, but it • is alleged that the defendant ought not to have a decree quieting his title, unless up on-the condition of paying the above amount.

The motion for a new trial was based on the ground of insufficiency of the evidence to justify the decision of the court; and the only specification that requires consideration is, that “the evidence is insufficient to justify the decision that the defendant, Dougherty, is not entitled to a "lien upon the . . . property [in question] for the amount specified in the answer,” etc. The evidence bearing on this specification— which is all the evidence in the bill of exceptions—is: 1. A stipulation to the effect “that the plaintiff was, at the commencement of the suit, the owner of the lands and premises described in the complaint, except in so far as the said lands and premises might be affected and encumbered by the liens asserted by the defendant, based on the tax-certificates and proceedings mentioned in the answer,” etc.; that “at the time the tax-certificates and deeds hereinafter mentioned were executed, the property was assessed to the predecessors in interest of the plaintiff”; and “that since the year 1888 the taxes upon said property had been paid by said plaintiff, ’ ’—from which it is to be inferred that the plaintiff and his predecessors have been continuously the owners and

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in possession of the land since the assessment for the fiscal year 1882 (Pol. Code, sec. 3628), or, at least, that the court was authorized so to find; 2. The certificates of tax-sales in question introduced in evidence by defendant, with stipulation of due record and assignment to him, which, it is stated, were regular in form; and 3. Two deeds from the tax-collector, introduced in rebuttal, purporting to convey the land in question,—the one to Bosworth (defendant’s assignor), on a sale for delinquent taxes, assessed for the fiscal year ending June 30, 1882; the other, “for the taxes of 1883,” to Marsily, as assignee of Bosworth. These deeds, it is stipulated, did not otherwise than as above 1‘ recite in what year the property was assessed,” but were “otherwise regular in form.” It will thus be seen that the land in question was sold for taxes to the same person (Bosworth) for the fiscal years 1882, 1883, 1885, 1886, and 1887, the last three being the sales under which'the defendant’s lien is asserted.