Opinion
Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.
Henry S. Dexter died in San Francisco, in January, 1871, seised of a lot of land in said city. The plaintiff, in October, 1872, became the administrator of his estate with the will annexed. The taxes for the fiscal year 1871-2 were not paid, and the lot was sold by the tax collector for the tax, in December, 1871. A deed was given to the purchaser in June, 1872. The deed recited that the property was sold in front of the tax collector's office, and the statute permitted it to be sold there, but there was no statute declaring the the effect of a recital that the property was sold in front of the tax collector's office. This was an action of ejectment brought by the administrator to recover the lot. The defendant claimed under the tax deed. On the trial the plaintiff having proved title, rested. The defendant then offered in evidence the tax deed. The plaintiff objected to the same, but the court admitted it in evidence subject to the objections. The parties then rested, and the court rendered judgment for the defendant. The plaintiff appealed.
COUNSEL:
We are willing to adopt the rule laid down in the statute, that a deed containing certain recitals therein specified is prima facie sufficient to " convey to the grantee the absolute title to the lands described in said deed." In the absence of this statutory provision giving such effect to the recitals, it would devolve upon the party claiming under the tax deed to prove all the antecedent requirements. (Norris v. Russell , 5 Cal. 249.)
But the deed here recites that the property was, by the tax collector, " offered at public auction, in the tax collector's office in said city and county." There is no law in existence which declares that a deed containing this latter recital shall convey any title whatever, either absolute or otherwise.
Lloyd Baldwin, for Appellant.
Charles A. Low, for self, argued that the tax deed was prima facie evidence of title, and that it devolved on the plaintiff to impeach it.
OPINION By the Court:
The Revenue Act of 1857 (Sec. 18), required that the tax collector's certificate and deed should contain the recital, inter alia, that the property assessed was " in accordance with law offered at public auction in front of the county court-house," and declared (Sec. 22), that a deed containing the requisite recitals " shall convey to the grantee the absolute title in the lands described therein," etc. Such a deed was made prima facie evidence of title. The Revenue Act of 1857 required the property to be sold in front of the county court-house. The statute of 1865-66 permits the sale in San Francisco to be made in or in front of the tax collector's office, but no corresponding change is made as to the recital in the tax certificate or deed.
In the case before us the tax deed contains a recital that the property was " offered at public auction in the tax collector's office."
It is not here necessary to decide that a deed not containing the statutory recitals is inadmissible for any purpose, or that it would not constitute prima facie evidence of the truth of the recitals which do accord with the statute. It is quite certain that when a recital to which so extraordinary an effect is given is omitted, the burden is at least cast upon the party relying on the deed of proving that the sale was in fact made where the law permits it to be made.
Judgment reversed and cause remanded for a new trial.