Hurlbutt v. Butenop

By the Court, Shafteb, J. This is an action of ejectment brought to recover the possession of Block Sixty-seven, situated in the City of Oakland, and is parcel of lands granted by the Mexican Government to Peralta. Both parties claim under the said grantee. The plaintiff, at the trial, offered in evidence, as part of his dcraignment from Peralta, a certified copy of the record of a deed from Irving to one Marshal. The plaintiff was sworn and testified that he “ never had control of the original deed, and that it was not then in his power or control.” The defendant [55] objected to the admission of the document, on the ground that there was not sufficient evidence of the loss of the original, and that no diligence had been used to produce it. The objection was overruled by the Court, and the defendant excepted. This ruling was correct. (Skinker v. Flohr, 13 Cal. 638.) The plaintiff, having connected himself with J. C. Hays and others, grantees of Peralta, by deed dated March 13,1852, and recorded March 17, 1852, on a defective acknowledgment, and having further proved that Peralta was in possession of the property in 1849, and that defendant was in possession at the commencement of the action, July 30, 1860, rested his case. The defendant then gave in evidence a deed of the premises from Peralta to Francisco Galindo, dated October 8, 1857, and recorded on that day, and a deed from Galindo to defendant, dated July 27, 1860, duly recorded. The defendant also introduced a tax deed to himself, dated July 27,1860, recorded June 20, 1861. The plaintiff, in rebuttal, produced the tax certificate showing that the sale was to Henry Butenop and not to defendant, and also gave in evidence a deed from Galindo to Pacheco, dated September 24, 1858, and recorded on that day ; and also the judgment roll in an action brought by Edward Gibbons against Peralta and wife, Galindo, and Pacheco, on the 2d of February, 1859, in which action it was adjudged that the aforesaid deed from Peralta to Galindo, and the deed from Galindo to Pacheco, were fraudulent and void as to the plaintiff Gibbons, “ and those on whose behalf he sues.” It appears by the record that Gibbons sued on his own behalf and on behalf of all others claiming, as he claimed, under the deed of Peralta to Hays and others, of March 13, 1852. A notice of Us pendens was filed in the action, and, as we understand the record, on the day the action was brought. The Court instructed the jury that the plaintiff had proved title in himself—that the defendant had failed to make out a defense, and that the plaintiff was entitled to a verdict—to which charge the defendant excepted. 1. Laying the decree in Gibbons v. Peralta out of account, [56] the case stands thus : The plaintiff proved title in himself through the unrecorded deed of Peralta to Hays and others, of March 13, 1852. The defendant then proved a title apparently better than that, through the recorded deed of Peralta to Galindo, of October 8, 1857. The plaintiff, however, for the purpose of showing that the defendant took nothing by Galindo’s deed of July 27, 1860, proved that Galindo had no title at that date by showing a previous conveyance by him to Pacheco. Assuming that the evidence accomplished its purpose, yet standing by itself it demonstrated also that the plaintiff himself had no title, the deed of Peralta to Hays not havhaving bebn duly recorded. There was evidence in the case tending to prove that Peralta was in possession in 1849, but none tending to prove any entry on the part of the plaintiff. But the case did not go to the jury on the state of facts suggested. The decree in the case of Gibbons v. Peralta and others, established that the deed from Peralta to Galindo, and the deed from Galindo to Pacheco, were nullities as to Gibbons and all others claiming under Peralta through his deed to Hays and others. The plaintiff herein is one of the unnamed parties for whose benefit that suit was brought, and as such is entitled to participate in the benefit of the decree. The defendant is bound by the decree, for there was a notice of lis pendens filed, and the defendant bought of Galindo pending the litigation. It is further to be observed, that the defendant neither proved nor offered to prove that Galindo was a bona fide purchaser under Peralta for a valuable consideration. 2. It is further insisted that the instruction was erroneous, for the reason that the defendant became the owner of the lands by force of the tax deeds. . • The tax was assessed under the Act of 1857 and other Acts amendatory thereof and supplementary thereto. The assessment roll was put in evidence, from which it appeared that the block in question (Ho. 67, situated in Oakland township) was listed' to P. 0. Lander. The question discussed by counsel as to whether the defendant could purchase the property at tax sale, he having been in possession at the time the tax [57] was assessed, does not arise, for the reason that the record shows that the property was purchased by Henry Butenop, and there is no evidence in the case showing that the purchase was in trust for the defendant or by any collusion with him. It appears by the recitals in the deed that the certificate of sale issued to the purchaser was assigned by him to the defendant, and we shall assume, for all the purposes of this hearing, that the fact is established by force of the recitals. We consider that the assessment is radically defective in a number of particulars. There are seyetiAlistinct lots assessed to Lander, described severally by ngmbhrs, but' their value is given neither in gross nor in detajL' Under the headfof “ value of city and town lots,” there are figures written ||f against the numbers of the lots respectively, and in cas,W of Block Sixty-seven, the figures “ 500 ;”, but wh.éthers|íi^f stand for cents or dollars or eagles does not--appear. $ It is to be' further observed, in relatio^. ^,: fhe first three blocks, that they are flanked on the right, in the assessment roll, by a single sum, “ 14 50.” The “ total value of the property” is not represented otherwise than by the barren figures “ 31.05,” which sum, if read as a whole number, is larger than the sum of the figures first referred to by fifty, and the “ total tax” is set down as 33.63 cents. Passing by these obvious discrepancies, however, it is sufficient to say that the tax deed is void for the reason that it appears there was never any cash valuation of the lot which the deed purports to convey. (Acts 1857, p. 327, Sec. 4; Black. Tax Tit., 176, 193 ; Huse v. Merriam, 2 Greenleaf, 375.) Judgment affirmed.