Miller v. Miller

Garotjtte, J. —This is an action to quiet title, and an appeal is before us from the judgment, upon a bill of exceptions. Appellants introduced their tax deed in evidence and rested, insisting that such deed established a prima facie title in them. We are unable to see that respondents’ evidence was material to the case in any degree, and consequently we have nothing before us for consideration upon the question of title save the tax deed of appellants. In viewing a tax deed from a common-law stand-point, the author of Blackwell on Tax Titles, at section 845, says: “This deed, according to the principles of the common law, is simply a link in the chain of the grantee’s title. It does not ipso facto transfer the title of the owner as in grants from the government, or in deeds between man and man. The operative character of it depends upon the regularity of the anterior proceedings. The deed is not the title itself, nor even [378]evidence of it. Its recitals bind no one. It creates no estoppel upon the former owner. Ho presumption arises upon the mere production of the deed that the facts upon which it is based had any existence.” Such being the status of a tax deed at the common law, it is apparent that whatever dignity and value is attached to this deed as evidence of title is granted it by the statutory provisions of this state.

Section 3786 of the Political Code declares that the matters recited in the certificate of sale must be recited in the deed, and that such deed, duly acknowledged or proved, is primary evidence (prima facie) of certain matters and proceedings, specially naming them. Section 3787 provides that “ such deed, duly acknowledged or proved, is (except as against actual fraud) conclusive evidence of the regularity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed.”

These provisions of the statute are plain and explicit, and in the absence of other and additional legislation, there would seem to be no question but that the production of a tax deed in evidence established a prima facie title. But several years subsequent to the foregoing legislation, a statute was enacted, providing that the purchaser of property sold for delinquent taxes, or his assignee, must, thirty days previous to the expiration of the time for redemption, or thirty days before he applies for a deed, serve a notice upon the owner, stating certain matters, and further providing that the owner of the property shall have the right of redemption indefinitely until such notice shall have been given, etc. It is now insisted by respondents that the service of this notice is a condition precedent to the execution of the deed, and appellants having failed to prove such service, the deed was issued without authority, and therefore passed no title. An enactment similar in principle to the one under investigation is found in the statutes of Hew York, and also in the constitution of Illinois, and it has been" uniformly held in those states that in the