Pierce v. Low

By the Court: The Revenue Act of 1857 (Sec. 18), required that the tax collector’s certificate and deed should contain the recital, ■ inter alia, that the property assessed was “in accordance with law offered at public auction in front of the county courthouse,” and declared (Sec. 22), that a deed containing the requisite recitals “ shall convey to the grantee the absolute title in the lands described therein,” etc. Such a deed was made prima facie evidence of title. The Revenue Act of 1857 required the property to be sold in front of the county court-house. The statute of 1865-66 permits the sale in San Francisco to be made in or in front of the tax collect- or’s office, but no corresponding change is made as to the recital in the tax certificate or deed.

In the case before us the tax deed contains a recital that the property was “offered at public auction in the tax collector’s office.”

It is not here necessary to decide that a deed not containing the statutory recitals is inadmissible for any purpose, or that it would not constitute prima facie evidence of the truth of the recitals which do accord with the statute. It is quite certain that when a recital to which so extraordinary an effect is given is omitted, the burden is at least cast upon the party relying on the deed of proving that the sale was in fact made where the law permits it to be made.

Judgment reversed and cause remanded for a new trial.