Hewell v. Lane

53 Cal. 213 | Cal. | 1878

By the Court :

The return of the Sheriff, as remaining on file, in the case of The People v. South Half of Section Nineteen, shows that the land in question was, in point of fact, sold to the plaintiff as being the highest bidder, (“ to A. Hewell, who made the highest bid therefor,”) and not as the person who would talse the smallest or least quantity of the land, and pay the tax adjudged due. In view of the facts stated in the return, therefore, the defendant, (who was the Sheriff who made the sale) ought not to deliver a deed to the plaintiff, as purchaser, and should he do so, such deed would be absolutely void.

But the present proceeding is one in mandamus against the Sheriff, to compel him to deliver to the plaintiff a deed of conveyance, reciting that the sale was made to him, not as the highest bidder,-but as the bidder who offered to take the smallest quantity.of the land and pay the taxes adjudged. In other words, to compel the Sheriff, by recital in the deed, to contradict his return on file, and the truth of which return he reiterates in this proceeding.

We are satisfied, however, that the Sheriff cannot be compelled in this manner to contradict his return. He cannot, it is well settled, be compelled by the Court to correct his return on file against his will. After it has been placed on file it can be corrected only on his motion. It may be true that should he voluntarily deliver a deed which, in its recitals, should contradict his return on file, the rights of the grantee would not be affected by the return; and such is the general rule. But it would be contrary to reason and the adjudicated cases to hold that a writ of mandamus can be resorted to for the purpose of compelling the delivery of a deed containing recitals of what occurred at the sale contradictory of the Sheriff's return, which return he not only declines to amend, but insists in his answer to be correct in point of fact.

Judgment reversed and cause remanded.