Galbreath v. Dingley

KLETTE, J., pro tem. This is an action by J. W. Gal-breath and L. J. Wyseur, plaintiffs and appellants, to quiet title to certain real property. The complaint was in the usual form of a quiet title action. The answer and cross-complaint of defendants and respondents denied the allegations of the complaint, alleged that on March 11, 1938, the tax collector of Kern County sold an undivided one-half interest in the real property to each of the appellants, and executed and delivered to them two deeds conveying to each an undivided one-half interest to the real property; that the real property was never assessed nor sold to the state, in undivided interests; that they were the owners of the property; that they tendered and offered to pay appellants all sums paid by them, with interest; and prayed that title be quieted in them.

At the trial, May 26, 1939, appellants produced and placed in evidence a tax deed from the tax collector, bearing date, March 7, 1938, bearing acknowledgment the day before the trial, and delivered and recorded on the morning of the trial, which deed purported to convey all of said real property to J. W. Galbreath, one of the appellants. It was stipulated in open court that the property in question had not been assessed, [332]or sold to the state, in undivided interests, and that the notice advertising the property for sale described it as a whole; that the two deeds issued to appellants, conveyed an undivided one-half interest to each. The tax collector testified that he made the sale on March 7, 1938, to J. W. Galbreath, for $375; that L. J. Wyseur did not bid on the property; that he made two deeds conveying a half interest to each of the appellants; that on the advice of the district attorney he executed the third deed to Galbreath conveying the entire property to him; that neither of the appellants had reconveyed to him any interest received by them under the first two deeds. The book of the tax collector, in which he kept the official record. of lands sold to the state, and then resold to individuals, was produced in court, and recited that an undivided one-half interest had been sold to each of the appellants.

The trial court found in favor of respondents and rendered judgment quieting title in them, and requiring that they repay appellants the $375 paid out by them, with interest. From this judgment plaintiffs and appellants have appealed.

The rule is firmly established that the proceedings on tax sales are in invitum, and that every essential step leading to the execution of a tax deed must be strictly followed or the deed executed pursuant thereto, will be void. (Numitor Gold Min. Co. v. Katser, 83 Cal. App. 161 [256 Pac. 464]; Russell v. Mann, 22 Cal. 131; Holland v. Hotchkiss, 162 Cal. 366 [123 Pac. 258, L. R. A. 1915C, 492] ; Dougery v. Bettencourt, 214 Cal. 455 [6 Pac. (2d) 499].)