People v. Doe

By the Court, Sawyer, J.: This is an appeal from an order of the District Court, granting a writ of assistance under the provisions of sections forty-four and forty-five of the Revenue Act of 1861, to put a purchaser at a tax sale in possession of the premises purchased. The application for the writ was based upon the Sheriff’s deed alone. The judgment upon which the sale took place appears from the recitals of the deed to have been obtained in the Court of a Justice of the Peace. It must, therefore, have been a money judgment without any order of sale. (People v. Mier, 24 Cal. 61.) A transcript of the judgment was filed and docketed with the County Clerk, and thereby became a lien. The execution upon which the sale took place issued from the office of the County Clerk. Upon the hearing of the application, the respondent offered in evidence the Sheriff’s deed, to which appellant objected on the ground that the judgment under which the sale was made and the deed executed, had not been produced. The Court overruled the objection, and admitted the deed, to which appellant excepted. The only evidence offered was the deed and proof of service of a copy upon the party in possession, and of a demand to be let into possession. It is a general rule that a party claiming under an execution sale must produce the judgment upon which the execution issued. (Sullivan v. Davis, 4 Cal. 291; Hihn v. Peck, 30 Cal. 287.) But it is provided in section forty-five of the Revenue Act of 1861 that “ any deed derived from a sale of real property under this Act shall be conclusive evidence of title, except,” etc., (Laws 1861, p. 435, Sec. 45,) [222]and it is claimed by respondent that this provision takes the case out of the general rule. We think not. It is not provided that the recitals in the Sheriff’s deed shall be either conclusive or prima facie evidence that the deed is derived from a sale “under this Act.” It is still necessary to show that the proceedings and judgment under which the sale purports to have been made actually exist. We said in Hihn v. Peck, before cited, that the “judgment and execution go to the Sheriff’s power to sell, to his power to recite a sale in the given instance, and to his power to give a deed also, and therefore the recitals are not admissible to prove the Sheriff’s authority to sell or his authority to recite a sale. The power to sell, to recite, to deed, having its origin in the judgment and execution, must be proved by a production of both, under the rule of best evidence; but when the power has been so proved, the Sheriff becomes, so to speak, the accredited historian of his acts under it.” We see no ground for supposing that the Legislature designed to establish a different rule by the provision under consideration. The provisions of section forty-five of the Act of 1861 are very different from those of section twenty-three of the Act of 1857, as amended by the Act of 1859. Sections eighteen and twenty-two of the Act of 3 857 require certain facts to be recited in the certificate of sale and tax deeds. (Laws 1857, pp. 333-4, Secs. 18, 22.) And section twenty-three, as amended by the Act of 1859, provides that the facts so recited shall “ be all the requisites essential to the validity of sales made for taxes, and a deed made in conformity with the requirements of section twenty-two shall convey to the grantee an absolute title to the lands described in said deed; * * * and such deed shall be prima facie evidence of title in the grantee, except,” etc. (Laws of 1859, p. 349, Sec. 8.) Under this provision it is only necessary to compare the tax deed with the provisions of the Act to see if it recites the facts prescribed, and if it does the statute makes it prima facie evidence of the truth of the facts recited and of title. There is no such provision in section forty-five of the Act of 1861. It is provided that “ any