Simmons v. McCarthy

HARRISON, J. The plaintiff brought this action to obtain judgment that he is the owner and entitled to the possession of a certain mining claim in Siskiyou county, and that the adverse claim of the defendant thereto is without right. At the trial of the cause the court admitted in evidence, against the objections of the defendant, a tax deed for the premises in controversy, issued to the plaintiff by the tax collector of the county upon a sale by him for delinquent taxes for the fiscal year commencing July 1, 1888, and it is contended by the defendant upon this appeal that it was erroneously admitted, and by rear [624]son. of its failure to comply with the requirements of section 3786 of the Political Code should have been excluded by the court.

Section 3786 of the Political Code requires that the tax deed shall recite the matters recited in the certificate of sale, and by section 3776 the certificate of sale must state “the name of the person assessed, the description of the land sold, the amount paid therefor, that it was sold for taxes, giving the amount and year of the assessment, and specifying the time when the purchaser will be entitled to a deed.” The tax deed in question recites: “That said property was assessed according to law in the year A. D. 188 , for the year 1888 and 1889, at five hundred dollars, to Empire Bar Mining Company.” The recital in the deed “that said property was assessed in the year 188 ,” docs not give “the year of the assessment,” and is itself without any meaning. Nor is this defect remedied by the subsequent statement that the assessment was “for the year 1888 and 18S9,” since the statute requires to be given the year of assessment; whereas two different years are here given. "Where the staiute prescribes the particular form of the tax deed the form becomes substance, and must be strictly pursued, or the deed will be held void. And, when a form has been made necessary, it is not for the courts to inquire whether the required recitals are of material facts or otherwise. A special power granted by statute, affecting the rights of individuals, and which divests the title to real estate, ought to be strictly pursued, and it should so appear on the face of the proceedings.” (Grimm v. O’Connell, 54 Cal. 522.)

Plaintiff also offered in evidence a certificate of sale in which it is recited: “That said property was assessed according to law in the year A. D. 1888, for the year 1889, at five hundred dollars, to Empire Bar Mining Company.” The deed, as has been seen, recites that it was assessed “for the year 1888 and 1889.” The defect in the deed, however, cannot be aided by a reference to the certificate, or by showing that the certificate complied with the statute. Unless the deed shows on its face a compliance with the requirements of section 3786, it is not even prima facie evidence that the title of the owner of the land assessed is impaired, and cannot form the basis of a recovery. In the case last cited it was said: “Plaintiff must recover, if at all, on