De Frieze v. Quint
Before: Vanclief
Synopsis
Deed — Grant of Absolute Title — Estoppel of Grantor—After-acquired Title — Tax Deed. — The grantor of land is estopped by his deed of grant, bargain, and sale to the grantee, purporting to convey an absolute title to the land, from denying that before and at the time of that deed he had such absolute title, and by that deed conveyed it to the grantee; and if any title is thereafter acquired by the grantor through a tax deed, such title inures to the benefit of the grantee alone.
Taxation — Void Assessment — Recitals in Certificate and Deed — Omission in Deed. — Where the certificate of a tax sale states that the property was assessed to a person named, “ and to all owners and claimants, known and unknown,” the certificate shows that the property was not lawfully assessed; and where the tax deed omits to recite the latter part of the assessment as recited in the certificate of tax sale, it is void for not reciting the matters recited in the certificate.
Id.— Effect of Recitals — Prima Facie Evidence — Disputable Presumption— Variance of Deed from Certificate. — A tax deed reciting a lawful assessment is only prima facie evidence that the property was assessed as required by law, resting upon a disputable presumption that the recital conforms to the certificate of sale; and where the certificate of tax sale shows an unlawful assessment, its introduction in evidence as a foundation for the admission of the deed not only proves that the property was not lawfully assessed, but also that the tax deed, not conforming to the recitals of the certificate, does not contain the recitals required by law.
Statute of Limitations—Adverse Possessiqn — Notice to Owner. —In order to set the statute of limitations in motion against the owner of land, the adverse possession thereof must be sufficiently open and notorious to notify an ordinarily prudent owner of its existence, and of its hostile character, unless he is otherwise actually notified of such facts; and to be available against persons dealing with the owner for the land, the occupancy must be of such a character, at least, as should put them upon inquiry as to the title of the occupant.
Id. — Burden of Proof. —The burden of proving all the essential elements of an adverse possession, including its hostile character, is upon the party relying upon it.
Id.—Possession of Unimproved and Uninclosed Land — Notice of Adverse Possession —• Prescription —■ Quieting Title — Finding against Evidence. — In an action to quiet title to land, where the plaintiff claims title by prescription, claiming adverse possession under a tax deed during five years before the commencement of the action, but the evidence shows that the land was uninclosed and uncultivated, and no person resided upon it; that it was bounded on all sides by uninclosed land, upon which, as well as upon it, the cattle of the neighbors roamed and grazed without restraint, —the fact that the plaintiff, through his lessee, erected upon the land a rude shed, sufficient to afford shelter to “three valuable animals,” is not sufficient, in the absence of express notice, to justify the inference that the defendant had notice of an adverse possession of the plaintiff, especially where there is no evidence that the shed was ever used for any purpose, and will not justify a finding of adverse possession of the land.
Vanclief, C. Action to quiet plaintiff’s alleged title to a tract of swamp and overflowed land, containing ninety-one acres, situate in Marin County. The action was brought against Leander Quint in his lifetime, for whom the administratrix of his estate was substituted before trial. Judgment passed for plaintiff, and defendant appeals therefrom, and also from an order denying her motion for new trial.
The defendant claimed title by a grant, bargain, and •sale deed from plaintiff, reciting a paid consideration of $150, and executed January 18, 1879.
The plaintiff claims title by a tax deed executed to him by the .tax collector of Marin County on March 1,1880, and also by prescription, alleging adverse possession under the tax deed during five years before the commencement of the action.
The recitals in the tax deed show that the taxes for which th.e land was sold to plaintiff were state and county taxes assessed to John De Frieze for the fiscal year ending June 30,1879, amounting to $1.55, and that the property was sold to plaintiff for this sum, plus .costs and charges, altogether amounting to $2.73.
The title w.a.s not traced to any higher source than the plaintiff, though the description of the land in the deed of January 18, 1879, from plaintiff to defendant, closes as follows: “For more particular description, see patent recorded in liber A, page 377, of records of Marin .County.”
The patent referred to was not put in evidence, but in rebuttal plaintiff’s counsel read in evidence the description of the land from the record of that patent, which appeared to be the same as that contained in the deed of plaintiff to the defendant, but did not read enough to show who was the patentee. There is nothing in the record tending to prove that John De Frieze was the patentee, op that he ever owned the land in question, [659]except that the tax for which the land was sold was assessed to him. Finally, it does not appear how or from whom plaintiff originally acquired title to the land before the date of his deed to defendant, yet he is estopped by his deed to defendant, purporting to grant the absolute title, from denying that before and at the date of that deed he had such absolute title, and by that deed conveyed it to the defendant. (Belcher etc. M. Co. v. Deferrari, 62 Cal. 160; Dodge v. Walley, 22 Cal. 228; 83 Am. Dec. 61; Haffley v. Maier, 15 Cal. 13; Clark v. Baker, 14 Cal. 613; 76 Am. Dec. 449); and it is also clear, that if any title passed by the tax deed, such title would have inured to the benefit of the defendant alone. But it appears that the tax deed was utterly void. The certificate of the tax sale, introduced by plaintiff as a part of his evidence in chief, states that the property was assessed to “ John De Frieze, and to all owners and, claimants, known and unknown.” These words in Italics do not appear in the tax deed, as required by section 3786 of the Political Code, although it appears that they were recited in the deed as drawn, but were stricken out before the deed was executed, thus showing that section 3786 of the Political Code was deliberately disregarded. Counsel for respondent contend that the deed alone can be received as evidence of the assessment, and that the certificate of sale put in evidence by plaintiff as a foundation for the deed must be disregarded. In this I think counsel are mistaken. The deed is only “ primary ” (prima facie) evidence “ that the property was assessed as required bylaw”; and this rests on the disputable presumption that the matters recited in the certificate are recited in the deed, as required by section 3786 of the Political Code. Here the plaintiff proved by the certificate that the property was not assessed, as required by law, before the deed was offered in evidence. Section 3776 of the Political Code requires the certificate to state 61 (when known) the name of the person assessed,” while the deed is required to recite only the matters recited in the certificate. By first introducing the certificate, the
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