Moss v. Shear

California Supreme Court Jul 1, 1864Published

Before: Sanderson

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Holding. A defendant in ejectment must plead improvements as a counterclaim to set them off against mesne profits, and a tax deed is admissible as evidence if it recites the power of sale, even if it lacks recitals of all preliminary statutory compliance.

Issues

Must a defendant in ejectment plead improvements in the answer to set them off against mesne profits?
Does an occupant have a legal obligation to pay taxes on land not listed in their name, thereby precluding them from purchasing a tax title?
Does a change in county boundaries after an assessment divest the original tax collector of the power to sell the land?
Must a tax deed under the 1854 Act recite all preliminary statutory compliance to be admissible as evidence?

Disposition. reversed

Quotations verified verbatim against the opinion

“It is not necessary, under the Act of 1854, to recite in the deed the various acts which show a compliance, on the part of the revenue officers, with the several conditions of the statute.”

“Any deed which, according to the rules of the common law, would be sufficient to transfer the title of the former owner and vest the estate in the purchaser, is regarded as an operative mode of conveyance”

Synopsis

Mesne Profits—Value of Improvements.—A defendant in ejectment who desires to set off the value of his improvements against the jnesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial.

Tax Deeds—Strengthening Title.—One who is under any legal or moral obliga- * tion to pay taxes cannot, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, add to or strengthen his title cither by purchasing at the sale himself, or by suffering a stranger to buy and then purchasing from him.

Same.—One who is under no legal or moral obligation to pay taxes is not precluded from purchasing at the tax sale, although in possession at the time the assessment was made or when the land was sold.

Assessment for Taxes—Validity of.—Under the Revenue Act of 1854, if lands were assessed to unknown owners, the Assessor must have stated in his list that the land was so assessed, because it was unoccupied and the owner was unknown, or the assessment created no charge upon the land, and no legal obligation was imposed on any one to pay the taxes.

Same.—In order to impart any validity to the acts of an Assessor, the provisions of the statute must he strictly followed, and all its conditions fully complied with by him.

Change of County Boundaries—Lien of Tax.—When, by a change of county boundaries made after land has been assessed for taxes, it falls into another county, the lien of the tax on the land still continues, and the Tax Collector of the old county may enforce the collection of the tax by sale.

Tax Deed—Recitals of.—It was not necessary under the Revenue Act of 1854 to recite in a tax deed the various acts showing a compliance on the part of the revenue officers with the several conditions of the statute. These acts, if inserted in the deed, are prima facie evidence; hut if not inserted, may he proved aliunde.

By the Court, Sanderson, C. J. This is an action for the possession of land and for the recovery of mesne profits. The complaint is in the usual form, not verified. The answer contains a denial of all the material facts stated in the complaint, and an averment of title in the defendant. The plaintiff recovered judgment for the posses[44]sion of the land, and twenty-one hundred dollars rents and profits.

The defendant moved for a new trial, which was denied. The appeal is from the judgment and from the order denying ,a new trial.

• I. In support of his case the plaintiff produced a patent from the Government of the United States, and several mesne conveyances, showing a regular chain of title from the patentees to himself, and proved that the land in controversy was included within the calls of the patent and mesne conveyances, and also proved the value of the use and occupation.

The defendant, by way of set-off to the plaintiff’s claim for mesne profits, offered testimony as to the value of his improvements, which, upon the objection of the plaintiff, was excluded by the Court. This ruling of the Court is assigned as error.

No claim for improvements is made in the answer, and for that reason alone the testimony was properly excluded. A. defendant in ejectment, who desires to set off the value of his improvements against the mesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial. In such cases, the value of the improvements constitutes a counter claim, or set-off, and in order to make it available as a defense, it must, like any other new matter, be pleaded.

II. The defendant relied upon a tax title, in support of which he offered a tax deed from the Sheriff and ex officio Tax Collector to W. M. Lent. Then a deed from Lent to John P. Shear, and a lease from John P. Shear to himself. This evidence was objected to by the plaintiff, upon several grounds, and excluded by the Court. Which ruling is next assigned as error.

It appears from the tax deed, which is a part of the record, that the land was listed as the land of persons unknown by the Assessor, and that the same was sold for the taxes for the fiscal year 1856 and 1857. The testimony on the part of the plaintiff proved that the defendant had been in the occupation of the land since 1856. Under these circumstances it is

Moss v. Shear

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