Hall v. Capps
Before: Searls
Synopsis
Tax Sale—Service of Notice to Redeem—Insufficient Affidavit—. Invalid Deed.—Under section 3785 of the Political Code, as it stood in February, 1891, the affidavit of service of a notice to redeem property from a tax sale showing that it was served by posting the notice upon the property, but not stating that the premises were vacant and unoccupied at the time of the posting of the notice, is insufficient, and does not authorize the execution of a tax deed for the property.
Id.—Authority of Tax Collector.—The power of the tax collector to issue a tax deed comes not alone from the existence of the facts, but from the proof of their existence made in the manner specified in the statute, and the mode becomes the measure of his power, and he has no authority to issue a deed until supplied by affidavit with the proof of notice given as the statute provides.
Id.—Service of Notice by Posting—Exception to Rule.—Service of notice by posting upon the premises constitutes an exception to the rule of the statute requiring personal notice, and he who would avail himself thereof must establish by proof the facts bringing the case within the exception.
Id.—Recital in Deed—Prima Facie Evidence—Rebuttal.—The recital in a tax deed that the purchaser at the tax sale had filed an affidavit showing that the property was unoccupied is prima facie evidence of the facts stated therein; but the presumption arising therefrom may be rebutted by the affidavit itself not showing that the premises were unoccupied.
Searls, C. This action is to quiet the title of Mary C. Hall to lot sixteen (16) in block one hundred and seventy-five (175) of the San Diego Land and Town Company’s addition to the city of San Diego, county of San Diego, state of California.
Defendants set up title in themselves, as grantees of one J. W. Payne, who claimed title to the premises under a tax deed executed March 21, 1891, upon a sale of the property made March 14, 1890, for delinquent taxes for the fiscal year 1889-90.
Plaintiff had judgment. Defendants appeal from an order denying their motion for a new trial.
The statement on the motion for a new trial shows that the cause was submitted in the court below upon an agreed statement of facts, in which was incorporated: 1. Certificate of sale; 2. Notice to redeem, with affidavit of service thereof; 3. The tax deed.
Pending the argument in the court below, counsel for plaintiff objected to the sufficiency of the affidavit attached to the notice of redemption, which is in the following language:
“ State of California, )
County of San Diego, j ss'
“ J. W. Payne, being duly sworn, says: That he is the purchaser at tax sale of property described in the foregoing instrument.
“ That on the 16th day of February, 1891, he personally posted in a conspicuous place upon said property, to wit: Upon lot 16, block 175, of the San Diego Land and Town Company’s addition to San Diego, a written notice of which the foregoing is a copy.
“ S. W. Payne.
“ Subscribed and sworn to before me, 7th day of March, 1891. “ H. W. Weiners,
“ Tax Collector.”
[515]Defendants thereupon offered to prove by parol evidence that the property was, at the time of posting the notice of redemption, and at all times, vacant and unoccupied. To which proposed proof the plaintiff objected, upon the ground that the same was incompetent, irrelevant, and immaterial, urged in substance that the point was not as to whether the premises were, in fact, vacant and unoccupied, but whether the tax-collector, at the time he executed the deed, had sufficient evidence of such fact based upon an affidavit, etc.
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