Opinion
Civ. No. 753.
April 19, 1910.
APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge.
The facts are stated in the opinion of the court.
A. H. Jarman, for Appellant.
Rogers, Bloomingdale Free, for Respondent.
This action was brought for the purpose of quieting plaintiff's alleged title to certain lots described in the complaint as being in College Terrace in Santa Clara county. Defendant had judgment, and plaintiff prosecutes this appeal from the judgment on the judgment-roll accompanied by a bill of exceptions.
The complaint alleged that the plaintiff was the owner and entitled to the possession of the lots, and that defendant was in possession thereof claiming some interest or estate therein. The answer denied the ownership of the plaintiff, and alleged the possession and right to the possession of the said lots in defendant. It further alleged that said lots were sold to the state of California on the twenty-sixth day of June, 1896, for delinquent taxes assessed and levied thereon for the year 1895; that thereafter on the twenty-seventh day of August, 1901, in pursuance of such sale, a deed to said lots was duly executed by the tax collector to the state of California; that thereafter, on the twentieth day of January, 1905, the state sold said lots according to law to defendant, who was the highest bidder, for the sum of $181, and in pursuance of such sale of the tax collector executed and delivered to defendant a deed to said premises, which deed defendant has placed of record.
The court found that the plaintiff was not at any time the owner nor entitled to the possession of said lots; that the defendant was the owner, in the possession, and entitled to the possession thereof. The court also found that all the proceedings as set forth in the answer from the said assessment up to and including the execution of the deed to defendant, were regular, and that the tax deed was valid and conveyed a valid title to defendant.
Plaintiff contends that there were several irregularities in regard to the assessment, the notice of sale, the manner of sale and the amount thereof, sufficient to justify us in holding the tax deed void. In view of the conclusion we have reached it is not necessary to examine nor to discuss the several alleged informalities in the proceedings by which the tax deed was finally executed and delivered to defendant. It is well settled that the plaintiff, having alleged that he was the owner of the lots and entitled to the possession thereof, was required to prove that he was such owner, and the burden was upon him to make such proof. He was entitled to relief only upon showing title in himself, for if he had no title he could not disturb even the possession of defendant, and it was not his business as to whether or not defendant's paper title was perfect. ( Martin v. Lloyd, 94 Cal. 195, [29 P. 491]; Winter v. McMillan, 87 Cal. 256, [22 Am. St. Rep. 243, 25 P. 407]; Heney v. Pesoli, 109 Cal. 53, [41 P. 819]; McGrath v. Wallace, 116 Cal. 549, [48 P. 719].)
It may be conceded that at the time of the assessment and also at the time of the sale to the state the lots were owned by one Alexander Gordon. The record shows that plaintiff in proof of his title introduced in evidence a deed of said Gordon to one Farley, followed by a deed from said Farley to plaintiff. It does not appear that the deeds were read in evidence; nor is there anything as to the date or contents other than the statement that the deeds conveyed the property described in the amended complaint. This statement, of course, can mean nothing more than that the deeds were correct in form and purported to convey the premises as described in the amended complaint. Defendant called Gordon as a witness, and he testified that about February, 1906, said Farley came to the witness' house claiming to represent someone else, and wanted to get a deed to the lots; that Farley presented a bargain and sale deed, which witness declined to sign, but he finally, after some conversation, signed a quitclaim deed to Farley; that witness received no consideration for the deed; that witness at the time he made said quitclaim deed to Farley did not own the lots, but had conveyed two of them to W. J. Walsh in May, 1888, two of them to John Robinson in April, 1889, and the other two to Levi Van Fossen in 1893; that witness had disposed of all of said lots and given deeds to them prior to 1895. These deeds, although it does not appear that they were recorded, were good as to all persons save a subsequent purchaser or mortgagee in good faith and for a valuable consideration (Civ. Code, sec. 1214). The evidence of Gordon is not contradicted, and plainly shows that no title was in him when he conveyed to Farley. There is not a word of evidence even tending to show that plaintiff paid any consideration for the lots, or that he was a bona fide purchaser. The fact that Gordon refused to make any other than a quitclaim deed was notice to Farley, and sufficient to put him upon inquiry. The grantee in said quitclaim deed assumed all risks as to title. He took, and knew he was taking, only such title as was left in Gordon. There being no title in Gordon nothing was conveyed. There is no explanation as to why the plaintiff procured the quitclaim deed. If he did it for the purpose of acquiring a standing upon which to come into court and attack the defendant's tax title, such purpose does not commend itself to a court of equity. The defendant being in possession under a deed from the state, regular in form, for which he paid a valuable consideration, and thus enabled the state and county to collect the taxes which had been assessed upon the lots, cannot be disturbed for light or trivial reasons, or by a stranger who has nothing but a quitclaim deed from one who had no title. The law aims to do justice and prevent wrongs. One claiming its affirmative aid to quiet his title must prove such title, and not rely upon a mere piece of paper made without consideration by one who had no title.
The testimony of Gordon was properly admitted. It was not in the nature of declarations tending to impeach the title which he had conveyed by the quitclaim deed, but was for the purpose of showing that he in effect had nothing to convey, and conveyed nothing at the time he made the quitclaim deed.
The judgment is affirmed.
Hall, J., and Kerrigan, J., concurred.