Klumpke v. George H. Baker

Foote, C. — The appellant, Klumpke, instituted this action- to quiet the title to land which he had bought at tax sale.

[560]The court below (the trial being had without a jury) gave judgment for him, but afterwards, on motion of defendants, made and entered an order granting them a new trial, and from that this appeal is prosecuted.

That tribunal assigned as a reason for making the order that, as appeared from the record, the title to the land at the time of its assessment for taxes was in one of the defendants, Mrs. Mary A. Baker, and it had been assessed to George JEL Baker. The appellant denies that such was the fact, and alleges that the owner of the land was George H. Baker.

It appears that the latter obtained title to the land by deed from the Central San Francisco Homestead Association on August 3, 1869. That on November 1, 1875, he made a conveyance of it to his wife, Mary A, Baker, who entered into' possession thereof, and has so remained ever since, claiming it as her separate property under that deed.

That on the second day of May, 1870, he executed a deed of trust conveying the same property to E. W. Burr and B. D. Dean, as trustees for the Savings and Loan Society, the object thereof being to secure the payment to said society of a loan of money made to him.

That said money was paid on the 17th of August, 1876, and reconveyance under the terms of the trust deed made by said trustees.to George H. Baker; that the land was sold for the taxes of the year ending June 30, 1881, and a deed thereof made to the plaintiff by the tax collector on the 11th of August, 1882.

The grounds of the plaintiff’s claim to the land under his tax deed were:—

1. That the deed which George H. Baker made to his wife had no greater effect than an instrument of quitclaim, and that therefore no title afterwards acquired by him would inure to her benefit.

2. That even conceding the deed to be in fact one “granting” the land, the husband’s after-acquired title [561]