Dorn v. Baker

Belcher, C. — This is an action of ejectment, to recover possession of the east half of a certain thirty-sixth section of land in San Luis Obispo County, and the complaint is in the ordinary form. The answer of defendants simply denies the averments of the complaint, and alleges that the cause of action is barred by the statute of limitations.

At the trial, the plaintiff introduced in evidence a patent from the state of California, dated March 21, 1891, granting to him the demanded premises. The defendants then admitted that they were, and had been since January 1, 1891, in possession of said land. And the plaintiff admitted that prior to the year 1880, one Alois Schneider applied to the state of California to purchase the said land, and paid to the state twenty per cent of the purchase price and interest, and received a school-land certificate of purchase therefor; that Schneider died in the year 1887, and thereafter, in the year 1890, plaintiff succeeded to his rights in and to the said land, under and through a deed executed by the administrator of his estate, after due and regular proceedings in the matter of his estate, and pursuant to an order of the court, duly made, confirming the sale to plaintiff and directing the execution of the deed. And plaintiff testified that at the time he purchased the land there was due the state, on the certificate of purchase therefor, about six hundred dollars, which he paid to the state, and then, as the assignee of the certificate, received the patent introduced by him in evidence, and that he had no title to the land other than the one thus acquired.

The defendants then offered in evidence a tax collector’s deed of the land, which was executed to defendant Baker on March 12, and recorded on April 6, 1886, and which recited, among other things, that the land was [208]assessed to Alois Schneider for the fiscal year ending June 30,1885, and the state and county taxes due thereon not being paid, was sold to Baker on March 6, 1885, for the sum of $9.13, the full amount of the taxes, costs, and charges.

The plaintiff objected to the deed being received in evidence, upon the ground that it was immaterial and was not pleaded. The court overruled the objection, and thereupon the case was submitted.

On the next day, and before the case was decided, the defendants presented to the court, and asked leaAre to file, an amended answer, in which, in addition to the denials and averments of their original answer, they set out a copy of the said tax deed, and alleged that defendant Baker was the owner of said property and in possession thereof, and had been such owner and in possession since the sixth day of March, 1885.