Hewes v. McLellan

Works, J. Ejectment. The plaintiff based his right to recover on two tax deeds alike in form. The deeds were offered in evidence, and excluded on the defendants’ objection. This left the plaintiff without any evidence of title, and judgment of nonsuit was rendered against him, from which he appeals.

The only question in the case is as to the validity of these tax deeds. They were objected to on the following grounds: “1. The deed shows that fifty cents was charged for the certificate, and hence the tax sale was for too much by fifty cents; 2. The tax collector offered the entire lot for sale, instead of the smallest quantity which any person would be willing to take and pay the tax; 3. That there is no recital in said deed that plaintiff was or would be entitled to a deed in one year; 4. The land was assessed to Thomas Hayes, not to the owner, that being no name in law.”

The first and second of these objections are determined against the respondent by Doland v. Mooney, 79 Cal. 137, as we understand that case. If not, we now hold that the deed was not subject to these objections. As to the first, all that can be said is, that the deed shows that fifty cents was charged for the certificate, instead of the duplicate certificate, as allowed by the statute. But there appears to have been but one fifty cents charged, which renders this difference in the recital wholly immaterial.

As to the second, the property was offered in the way [395]that was held to have been proper in Doland v. Mooney, supra.

The third objection is based on the provision of the code which requires the deed to contain the recitals contained in the certificate of sale, one of which was the time when the plaintiff was or would be entitled to a deed. The deed contains the statement that the certificate recited that “the purchaser will, if the property so sold be not redeemed within twelve months from such sale, be entitled to a deed thereof on the third day of April, 1882.” The requirement of the code that the deed shall recite when the purchaser will be entitled to it is absurd, and results from the general provision that it shall contain the recitals contained in the certificate, which was enacted no doubt without observing that one at least of the recitals proper in the certificate would be entirely improper and useless in the deed as the recital of a fact. We think, therefore, that it was sufficient that the deed recited the fact that this statement was contained in the certificate.