73 Cal. 43 | Cal. | 1887
Action to quiet title. Plaintiff is the executrix of the last will and estate of George Cadwalader, deceased. On July 25, 1877, and thereafter to December 20, 1877, defendant Nash was the owner of the property in controversy, except a few lots that he had conveyed to Phillips. In July, 1877, Frank Johnson commenced an action against Nash, and on July-25, 1877, caused an attachment to be levied on the property mentioned in the complaint. Thereafter, Johnson
The return of the sheriff on the execution, and also the sheriff’s deed, admitted in evidence against the objections of appellant, describe the premises sold as follows: “ Lots number [giving the numbers], and blocks number [giving the numbers], all described according to the Commissioner’s Map of Middletown, on file in the office of the recorder of San Diego County,” etc.
The respondent, in order to identify the property described in the sheriff’s deed, introduced in evidence a map marked “ Exhibit A,” and commonly called the “Referee’s Map,” or “Jackson Map.” This map is designated as “ Referee’s Map,” and not as “ Commissioner’s Map,” and was filed in the county clerk’s office, and not in the recorder’s office, and was indorsed, filed by the clerk of the District Court. At that date, and for a long time thereafter, the office of clerk and recorder was held by the same person, to wit, A. S. Grant. He was clerk and ex officio recorder of the county; the business of the .two offices was done in the same room in the courthouse, and the maps were kept together in the same drawer in that office. There was also in evidence another map of Middletown known as the “ Pascoe Map,” and indorsed “John B. Mhoon, Referee.” This map is also marked as an exhibit in Baldwin v. Couts, and filed by the clerk August 3, 1869. It was found in the- recorder’s office, with his tag attached to it, and was with the rest of the maps in that office. This exhibit shows
The court being in doubt as to which map was described in the deed, from the words of the deed, and consequently being uncertain what lots the deed described, permitted parol proof to be introduced. The sheriff was called to testify as to the map, and under objection said: “We took a traced copy of the map before starting out with the surveyor. This is the map I referred to in the deed as the ‘ Commissioner’s Map.’ This is the map we used,” referring to exhibit A. It is claimed by appellant “that by parol proof the court undertook to find out where the premises were, which ought to have been, but were not, described in the conveyance. This is simply to pass the title to land, by parol, for without this proof the land could not be identified. The deed alone did not describe it, and for this error a new trial should be granted.”
1. Where a deed refers in general terms to the official map of a town, parol evidence is admissible to identify the map which has been officially declared to be the town map, and the fact that ai particular reference in the deed to the survey, and to the surveyor who made the map, does not literally accord with the indorsement on the map is immaterial. (Penry v. Richards, 52 Cal. 496.) In all cases where the deed refers to a map or instrument in writing, the latter is regarded as incorporated in the deed as a part thereof. (Vance v. Fore, 24 Cal. 435.) The deed and the map or instrument, however, when taken together, must be as certain in respect to the description as a description contained in the deed itself, and the identity of the map referred to must be clearly established. When the deed itself contains a sufficient description of the land, so that it can be identified without resorting to the map to ascertain its locality, it is not necessary for the party introducing
In the case at bar it was not shown whether there was a base line with blocks and lots of corresponding numbers on each side of the line, but the two maps in evidence represent blocks and lots of corresponding numbers as being situated in different parts of Middle-town. Thus, for instance: Exhibit A represents block 96 as situated six blocks north of California Avenue, while exhibit B shows that it is only two blocks north of the avenue; and block 150 is represented on map A as being six blocks north of California Avenue, while on map B it is situated one block south of the avenue. Which map is correct? Both are referee’s maps, in different cases it is true, but of the same title, between the Same parties, and for the same purpose,—partition of
The fact that map B contains a plat of only a portion of the blocks and lots numbered in the deed of the sheriff, and that map A contains what appears to be a full plat of Middletown, might, under some circumstances, be pertinent and forceful, but in view of the other facts here shown cannot avail the respondent. The deed introduced in evidence to support the title of the estate to these particular lots in controversy described the premises as above quoted, while the complaint, findings, and decree herein, in describing them, read: “All according to the map filed in the partition of said Middletown property in the case of Baldwin v. Couts. Decree recorded October 24, 1874, in book 4 of miscellaneous records of said county.” The record shows that the description of the land intended to be conveyed is not complete and certain without reference to a map. No one could find it without the map. The sheriff himself in making the levy found the property only by using the map and making a survey. Against the objection of the defendant he was allowed to testify: “We took a
The contention of the respondent that, as Nash was a party to the proceedings in which the execution was issued, he is presumed to have known all that was done by the sheriff, and if there was any irregularity detrimental to his interests, he should have applied to the court to set aside the sale, and having failed to do so, the purchaser took all the title Nash held, cannot be maintained.
Of course, in judicial sales, where the court acts directly upon the property sold, the deed can be made to conform to the true description of the thing sold, and the rules applicable to sales between man and man to a great extent apply; but not so in case of execution sales. Freeman on Executions, in section 281, says: “The object of the advertisement is to give notoriety to the proposed sale, so that all persons may understand what it is that is to be sold. No one will bid unless he can know-what he is bidding for. The rights of the defendant must necessarily be sacrificed, unless the thing to be sold is made certain. People may refuse to bid, or after successful bidding may claim more than the officer intended to sell. So the deed ought to be free from ambiguity.” Freeman on Executions, section 330: “Hence a description from which the lands intended to be transferred can be located is indispensable to the validity of the deed.”
Our conclusions upon this branch of the case, therefore,
It is admitted that there is no uncertainty in the sheriff’s deed as to the east one half of pueblo lots 1126 and 1127-, and the only question in relation to those lots is as to the validity of the tax deeds under which defendant claims title thereto. In June, 1873, Hash, for a valuable consideration, conveyed to Phillips certain lots and blocks of land, the same being a portion of the east one half of pueblo lot Ho. 1126, and Phillips reconveyed the same to Hash by deed dated December 13, 1883. As there was no uncertainty in the sheriff’s deed so far as these two pueblo lots were concerned, the defendant’s interest in every portion thereof not previously conveyed to Phillips passed to Cadwalader by virtue of the sheriff’s levy, sale, and deed under execution, and defendant’s title thereto, if he has any, is derived from the tax deed.
. It appears from the findings of the court that these pueblo lots are large lots containing several acres, and that they are subdivided into a large number of smaller lots designated upon the map by numbers. The decree adjudges Hash to be the owner of over 150 subdivisions, being a portion of the east one half of one pueblo lot alone, giving the number of each block and lot. The. map showing these subdivisions was made by the city engineer in 1870.
The assessor did not assess the lots, nor even the block separately, but assessed the east one half of lot 1126 as one undivided parcel. This, we think, could not, under the law, be done. “ The assessor must prepare an assessment-book, .... in which must be listed all property within the county, and in which must be specified in separate columns under the appropriate head: ....
That the assessor is bound to assess in subdivisions
We think, therefore, that the court below was right in its conclusion that the assessment, sale, and deed affecting the pueblo was void.
Appellant requests that the court below be directed to enter judgment in his favor for the Middletown lots, but this request cannot be granted. The evidence on another trial may show a state of facts entirely different from those shown in this record.
Judgment and order reversed, and cause remanded for a new trial.