Roberts v. Chan Tin Pen

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover possession of a lot in the City of San Francisco, the plaintiff claiming title thereto under two tax deeds. He recovered judgment, from which the defendants appeal.

The plaintiff introduced in evidence the two tax deeds—one executed by J. Hunt as Tax Collector, under a sale for delinquent taxes for the year 1859-1860, conveying a portion of the premises described in the complaint; and another executed by E. H. Wash-burn as Tax Collector, under a sale for delinquent taxes for the year 1860-1861, conveying the remainder of the premises.

After the plaintiff had closed his testimony, the defendants introduced in evidence a deed, under which they claimed title, which showed that a lane or alley, eight feet wide, on the west side of the premises deeded to them, was not included therein; and they also offered to prove by a witness, that this alley was not possessed or owned by the defendants, but that it was an open alley, over which the owners of the adjoining property had a right [264]of way only. The Court excluded the testimony, and this ruling is assigned as error. When the tax deeds were offered in evidence, the defendants objected to their introduction, on the ground, first, that no preliminary evidence, laying the basis for them introduction, had been offered; second, that they were void on their face; which objections were overruled by the Court. The complaint in this case is general in its terms, making no reference to the tax deeds, or the peculiar character of the title under which the plaintiff claimed. The answer is equally general in its denials and averments. The respondent insists that the Court properly overruled this objection, because, first, the point it was sought to sustain by the evidence was not specifically made as an objection to the introduction of the tax deeds, citing 10 Cal. 267; 12 Id. 243; second, the matter was not specifically set forth as a defense in the answer. These objections of the respondent also apply to the other evidence offered by defendants attacking the tax deeds, which was ruled out by the Court. The rule that a party must specify his objections to evidence when offered, applies only to those objections which relate to the question whether the evidence is- admissible or not, and does not relate to the question as to the weight to be given to the evidence after it is admitted, or to matters tending to contradict, overthrow, or invalidate it. It, therefore, has no application to the present case. The objection that these matters are not set forth in the answer is equally untenable. Under the general denials of the answer, the defendants had a clear right to introduce any evidence allowed by the statute, to show the invalidity of the tax deeds, or the title acquired under them. The respondent also insists, that, as the statute only permits a tax deed to be attacked upon certain points, therefore these points must be specifically stated in the answer. But this is also untenable. The statute expressly declares, that Courts of Law and Equity may examine in regard to such deed, and may hear any testimony in relation thereto to show the points on which the permitted objections are founded. It is a matter, therefore, of evidence, and not of pleading. Besides, as the complaint makes no reference to a tax deed or title, the defendants were not bound to make any reference to it in their answer.