Carpenter v. Shinners

California Supreme Court Aug 3, 1895 No. No. 19551Published

Before: Searls

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Holding. The court affirmed the judgment for the plaintiff, holding that a tax deed from a municipal corporation is insufficient to defeat title where the record fails to prove the existence of a municipal ordinance authorizing the tax proceedings and where the deed's own recitals demonstrate that the required notice period for the tax sale was not met.

Issues

Whether a tax deed is sufficient to defeat title when the record lacks proof of the municipal ordinance authorizing the tax proceedings.
Whether a tax deed's recitals regarding the duration of notice for a tax sale are controlling when they contradict the actual dates of publication and sale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“So far as appears from the record the tax proceedings were unsupported by any ordinance of the municipal corporation, and entirely without authority of law.”

“We are of opinion that the passage and existence of an ordinance authorizing the tax proceedings should have been proven as a prerequisite to the deed becoming prima facie evidence of a compliance with such proceedings.”

“it may be seen that a notice of only twenty days was given of the sale.”

Synopsis

Tax Deed—Admission oe Genuineness—Construction.—The effect of an admission of the genuineness and due execution of a tax deed pleaded by the defendant, and not denied by affidavit of the plaintiff, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and, whether it is proven or its execution admitted, its terms and legal effect are to be construed by the court.

Id.—Sale for City Taxes—Failure to Prove Municipal Ordinance.— A tax deed which. purports to be a conveyance of real estate sold for the nonpayment of city taxes, although its genuineness may be admitted by the failure of the plaintiff to deny its due execution, cannot be prima facie evidence of a compliance with the city ordinance authorizing the tax proceedings, without proof of the passage and existence of such ordinance as a prerequisite to the effectiveness of the deed.

Id.—Judicial Notice—Tax Laws—Municipal Ordinances—Burden of Proof.—The courts take judicial notice of the revenue laws, and, if a tax deed recites the performance of the acts required by those laws, the burden of proving a noncompliance is cast upon those who attack the regularity of the several essential acts; but courts do not take judicial notice of the ordinances of municipal corporations authorizing tax proceedings, or of the time when, if passed, they take effect, and such an ordinance must be proved as a prerequisite to a tax deed becoming prima facie evidence of a compliance with such proceedings.

Id.—Recital in Tax Deed—Defective Notice of Sale.—Where there is no proof of a municipal ordinance respecting a sale for delinquent city taxes, and the notice provided by section 3768 of the Political Code in cases of sales for state and county taxes was not given, a recital in the deed which shows that less notice was given of the sale cannot be prima facie evidence of its regularity.

Searls, C. This is an action to quiet the title of plaintiff to lots 1 and 2, in block 132, in the city of El Paso de Robles, county of San Luis Obispo, state of ■California.

The answer of defendant denied the allegations of the -complaint, and as a further defense to the action set up title in himself under a tax deed, a copy of which is attached to the answer.

Plaintiff failed to deny the genuineness and due execution of the tax deed by affidavit, as provided by section 448 of the Code of Civil Procedure.

At the trial it was admitted that plaintiff was the ■owner of the land described in the complaint, unless the tax deed set out in defendant’s answer defeated the plaintiff’s title.

The cause was submitted to the court upon the admission aforesaid and the tax deed without further evidence.

Written findings were waived and judgment was thereupon entered in favor of the plaintiff, from which judgment and from an order denying a motion for a new trial defendant appeals.

The question presented relates to the sufficiency of the tax deed upon its face to defeat plaintiff’s title.

The contention of appellant may be summarized thus:

1. The admission of the genuineness and due execution of the tax deed by failing to deny it, as required by section 448 of the Code of Civil Procedure, is an admission that it was duly executed by the party who signed it and in the capacity in which he appears to have acted; that it is an admission that the deed is what it purports to be upon its face, and that the matters recited therein are true.

2. That such tax deed, except as against actual fraud, is conclusive.

In support of the first position we are referred to Sloan v. Diggins, 49 Cal. 38, and Peterson v. Taylor (Cal., Nov. [36210], 1893), 34 Pac. Rep. 724 (not reported in Cal. Reports).

The second proposition is supported by reference to Rollins v. Wright, 93 Cal. 395.

The effect of an admission of the genuineness and due execution of an instrument pleaded by a defendant, and not denied, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and whether it is proven or its execution is admitted its' terms and legal effect are to be determined by an inspection of the instrument. It stands as an exponent of the facts therein set out, to be construed by the court,' and the conclusions of law are to be deduced therefrom. (Burnett v. Stearns, 33 Cal. 468.) The question, then, remains, does the tax deed, upon its face, show a state of facts from which to conclude, as matter of law, that the legal title to the premises vested in defendant ?

Carpenter v. Shinners

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