Roberts v. Chan Tin Pen

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to recover possession of a lot in the City of San Francisco, the plaintiff claiming title thereto under two tax deeds. He recovered judgment, from which the defendants appeal. The plaintiff introduced in evidence the two tax deeds—one executed by J. Hunt as Tax Collector, under a sale for delinquent taxes for the year 1859-1860, conveying a portion of the premises described in the complaint; and another executed by E. H. Wash-burn as Tax Collector, under a sale for delinquent taxes for the year 1860-1861, conveying the remainder of the premises. After the plaintiff had closed his testimony, the defendants introduced in evidence a deed, under which they claimed title, which showed that a lane or alley, eight feet wide, on the west side of the premises deeded to them, was not included therein; and they also offered to prove by a witness, that this alley was not possessed or owned by the defendants, but that it was an open alley, over which the owners of the adjoining property had a right [264] of way only. The Court excluded the testimony, and this ruling is assigned as error. When the tax deeds were offered in evidence, the defendants objected to their introduction, on the ground, first, that no preliminary evidence, laying the basis for them introduction, had been offered; second, that they were void on their face; which objections were overruled by the Court. The complaint in this case is general in its terms, making no reference to the tax deeds, or the peculiar character of the title under which the plaintiff claimed. The answer is equally general in its denials and averments. The respondent insists that the Court properly overruled this objection, because, first, the point it was sought to sustain by the evidence was not specifically made as an objection to the introduction of the tax deeds, citing 10 Cal. 267; 12 Id. 243; second, the matter was not specifically set forth as a defense in the answer. These objections of the respondent also apply to the other evidence offered by defendants attacking the tax deeds, which was ruled out by the Court. The rule that a party must specify his objections to evidence when offered, applies only to those objections which relate to the question whether the evidence is- admissible or not, and does not relate to the question as to the weight to be given to the evidence after it is admitted, or to matters tending to contradict, overthrow, or invalidate it. It, therefore, has no application to the present case. The objection that these matters are not set forth in the answer is equally untenable. Under the general denials of the answer, the defendants had a clear right to introduce any evidence allowed by the statute, to show the invalidity of the tax deeds, or the title acquired under them. The respondent also insists, that, as the statute only permits a tax deed to be attacked upon certain points, therefore these points must be specifically stated in the answer. But this is also untenable. The statute expressly declares, that Courts of Law and Equity may examine in regard to such deed, and may hear any testimony in relation thereto to show the points on which the permitted objections are founded. It is a matter, therefore, of evidence, and not of pleading. Besides, as the complaint makes no reference to a tax deed or title, the defendants were not bound to make any reference to it in their answer. [265] The statute authorized the Court to hear testimony to show “ that the property, or a larger parcel, of which it is a portion, was not assessed or equalized, as required by law,” and under this the defendants had a right to show that the lot or portion of a lot assessed to them included a tract in which they had no right, title, interest, or claim, and which was not in their possession, charge, or control; and if this eight-foot alley was thus improperly included in the assessment, the defendant had a right to prove those facts. We think, however, that the exclusion of the parol evidence worked no injury in this respect to the defendants; as the deed introduced by them shows that they had an interest in this alley to the extent of a right of way over it, as appurtenant to adjoining property conveyed by the deed. The alley does not appear to have been a public highway. The fact that it was included in the assessment with such adjoining property was not, therefore, sufficient to invalidate the assessment. The property assessed in 1859, and which is the same as that described in the deed to the defendants, except that it includes the alley, was offered for sale by the Tax Collector in December, 1859, and at that sale plaintiff bought “ one-eighth ” of the whole premises. The evidence shows that there was no statement or designation made, before or at the time of the sale, to the bidder, of the particular portion or location of the part he should bid on, should less than the whole be taken; nor was any designation thereof made until the certificates of purchase were made out, which was from two weeks to two months after the sale. The property assessed in 1860 is also the same as that described in defendant’s deed, except that it includes the alley; and it was offered for sale by the Tax Collector in December, 1860, when the plaintiff purchased “fourteen feet” of the premises. Ho designation was made, at the time of the sale, of the particular portion to be taken by the purchaser, when less than the whole property was bid for. The evidence shows that this fourteen feet was not located or specifically designated until some time after the sale. The deeds made in pursuance of these sales do not conform to the purchases made in any respect. The Hunt deed, instead of conveying the “one-eighth” of the premises assessed, describes [266] an irregular tract, three feet one and one-quarter inches wide at one end, and eight feet seven and one-eighth inches at the other,_ and running across the premises one hundred and thirty-seven feet six inches in length. The Washburn deed conveys a strip fourteen feet wide at each end, and running across the premises one hundred and thirty-seven feet six inches in length, and includes a portion of the premises conveyed by the Hunt deed. The statute under which the sale was made (Wood’s Dig. 619, Sec. 17) authorized the owner of the property to designate, prior to the commencement of the sale, what portion of the property he wishes bid on; but, if he did not so designate, “then the Tax Collector shall designate; and the person who will take the least quantity or smallest part of the land; or, in case 'an undivided interest is assessed, then the- smallest portion of such interest, etc., etc., shall be declared to be the purchaser.” It will be noticed that it is only in case that an “ undivided interest is assessed,” that a .portion of such interest can be bid for. " In this case, no undivided interest in the property was assessed; and the Tax Collector had no power or authority to sell an undivided interest therein to the plaintiff. It is clear also, that the intention of the statute is, that, when there is a sale of a less portion than the whole, and the owner has not designated the portion he wishes sold, and the Tax Collector is thus authorized to designate, such designation must be made before or at the time of the sale of the particular tract put up for sale, and that such designation cannot be made afterward. By the terms used in the statute, it is evident that the designation, whether by the owner or by the Tax Collector, must precede the actual sale to the purchaser. And, independent of these terms, if the statute had left it ambiguous, the necessity of such designation before the property is sold is apparent. It is important that the purchaser shall know what portion of the premises he is purchasing, that he may be able to bid understandingly; and it is of the greatest importance to the owner, as thereby the competition will he closer among the bidders. Besides, if the designation is not made until afterward, a door is left open for the grossest frauds. It follows, that there was not, in fact, any sale of the particular tracts described in the tax deeds. The property [267] really sold, was not sufficiently described to enable it to be located, or to render the sale valid. If the tax deeds had correctly described the tracts really sold according to the facts; that is, “ one-eighth ” and “ fourteen feet ” of the assessed premises—they would have been clearly void for uncertainty of description. It does not show whether the “ fourteen feet ” are fourteen square feet or fourteen feet square, or in what portion of the premises it was intended to be located—whether on any side or in the center; and the same difficulty exists as to the “ one-eighth.” This uncertainty of description could not be remedied after the sale by the Tax Collector; for that would be virtually attempting to make a new sale,' not at public auction, but in the most private manner. This objection to the title claimed under the tax deeds is properly included within the statutory provision upon this subject, which permits proof “ that, at a proper time and place, the property was not sold at public auction, by a proper officer or by a person acting de facto as such officer.” It in fact shows, that the property attempted to be conveyed by the tax deeds was never sold at all. It follows, that the tax deeds conveyed no title to the purchaser. See. 32 of the Revenue Law in force at the time these taxes were levied and sales were made (Wood’s Digest, 623), provides, that every tax levied under the provisions of that act shall be a judgment against the person and a lien upon the property assessed, “ which judgment shall not be satisfied or the lien be removed, until the taxes are all paid or the property has absolutely vested in a purchaser under a sale for taxes.” Sec. 20 also provides that this lien of the State is transferred to and vested in the purchaser at the tax sale, upon filing the certificate of purchase with the County Recorder; and it can only be divested by payment of the taxes and a per centage. Ho title having vested in ■ the purchaser under this sale for taxes, it is a question whether this lien for taxes does not still exist upon the property; and also whether, under Sec. 20, the purchaser cannot in equity be subrogated to the rights of the State, and enforce this lien accordingly. But, as these questions have not been discussed by the counsel for the parties, and were not raised in the Court below, it is unnecessary to determine them at the present time. The judgment is reversed and the cause remanded.