Reily v. Lancaster

Crockett, J., delivered the opinion of the Court:

This action is to recov.er a lot in the City of Sacramento, and the plaintiff deraigns title by regular mesne conveyances ■from John A. Sutter, to whom the land was granted by the Mexican Government, and to whom it has been finally con•firmed and patented. The defendants are the tenants of one Elliott, who was permitted to defend for them, and who sets up title in himself under certain sales for taxes and Sheriff’s deeds in pursuance thereof. The validity of the titles thus acquired is the principal question arising on this appeal. Jn support of the defense there is offered in evidence the complaint, summons, affidavit constituting proof of service, and Commissioners’ report in the case of The People v. Wm. Firderer and the west half of the lot in contest in this case, and also the decree and order of sale issued thereon, together with the Sheriff’s return, all which were objected to by the plaintiff as incompetent evidence; but they were admitted by the Court; and thereupon the Court also admitted in evidence, against the objection of the plaintiff, a Sheriff’s deed to Elliott for the west half of said lot, founded on said proceedings, which deed was made pending the action after the answer was filed, and but one day before the trial. It appears, from these proceedings, that the action was commenced against William Eirderer, as the owner of the west half of the lot, to whom it was assessed, and also against the west half in rem. But in the summons which was published the name of Eirderer is omitted, and the plaintiff claims that the omission is fatal to the judgment, the Court having acquired no jurisdiction of the proceeding, because of the failure to serve .the owner to whom the [356]property was assessed. The judgment, however, recites that it appeared to the satisfaction of the Court “that all owners and claimants of the property above described have been duly summoned to answer the complaint herein, and have made default in that behalf, ” and this recital brings the case fully within the case of Hahn v Kelly (34 Cal. 391.) The judgment, in this respect, cannot be impeached in a collateral action. We must presume the Court had sufficient proof of the service on Eirderer, though it does not appear in the judgment roll. But the Court erred in admitting in evidence the Sheriff’s deed to Elliott, made pendente '.life. If .a defendant in ejectment desires to set up a title acquired pending the action, he can only do so by amending ■his answer and averring the fact that the title was acquired since the commencement of the action. (McMinn v. O’Connor, 27 Cal. 238; Moss v. Shear, 30 Cal. 472.) The plaintiff, however, insists that the deed, if properly admitted, would be inoperative to vest title in Elliott, because it is alleged he was in the actual possession, claiming title to the lot at the time-of the Sheriff’s sale; and that, inasmuch as it was his duty to pay the tax, he cannot strengthen his title by a Sheriff’s deed made to enforce the payment of the delinquent tax. The tax sale was made in November, 1865, for the taxes assessed in 1863, and the proof shows that in March, 1865, Elliott obtained.a conveyance of the lot from one Butterfield, and thereupon inclosed it, and was in the actual possession at the time of the sale by the Sheriff. The lot was assessed to Eirderer, and not to Butterfield or Elliott, nor to unknown owners; and the defendant insists that neither Butterfield or Elliott, even though they had been in possession at the time of the assessment and after-wards, were under any obligation to pay the tax assessed to Eirderer, and were, therefore, at liberty to acquire the title at the tax sale with the like effect that a stranger might have done. -It is well settled in this Court that a party in possession, whose duty it is to pay the tax, shall derive no advantage from a sale for the tax, which he ought to have paid without a.sale. (Kelsey v. Abbott, 13 Cal. 609; Moss v. Shear, 25. Cal. 38; McMinn v. Whelan, 27 Cal. 318; Coppinger v.