Cope, J. and Norton, J. concurring.
This is an action for the possession of certain real estate situated within the city of San Francisco. The plaintiff bases his right to recover upon title as evidenced by the possession in 1850 and 1851 of one Mondolet, through whom he claims. The defendants rely upon two tax deeds, one executed by the Treasurer of the county of San Francisco in March, 1851, and the other executed by the Tax Collector of the City and County of San Francisco in June, 1858, and upon an alleged abandonment of the premises by Mondolet, and the operation of the Van Ness Ordinance. On the trial the plaintiff produced and gave in evidence, against the objection of the defendants, a conveyance of the premises from one Ramirez to Mondolet, executed in April, 1851, and then proved that Mondolet was in the possession of the premises in 1850 and occupied them until June, 1851; that during this period there was a two-story building thereon, which Mondolet used as a restaurant until it was destroyed by fire; and that the defendants were in the possession at the commencement of the action. The plaintiff also gave proof of the value of the use and occupation.
The tax deeds offered by the defendants, and the evidence in connection with them, were excluded upon the objection of the plaintiff. Proof of the payment of taxes, as evidence of ownership by the
Various errors are assigned for a reversal of the judgment. These arise upon the ruling of the Court below in admitting the conveyance from Ramirez to Mondolet; in excluding the tax deeds and evidence offered in connection with them; in rejecting proof of the payment of taxes and the value of the improvements; and upon the instructions to the jury on the question of abandonment and the operation of the Van Ness Ordinance; and upon the refusal of a new trial for the alleged insufficiency of the evidence to justify the verdict.
1. The conveyance from Ramirez to Mondolet was admissible, as showing the extent and boundaries of the premises of which Mondolet claimed possession. If Ramirez had no title, of course no title passed by his conveyance, and the defendants were not prejudiced by its introduction in evidence.
2. The tax deed of the County Treasurer, executed in March, 1851, was inadmissible without preliminary proof that all the requirements of the law authorizing its execution had been complied with. The statute which makes a tax deed prima facie evidence of the transfer of the title of the delinquent had not then been passed. That statute only applies to deeds executed upon a sale for taxes subsequently levied. Nor was any presumption to be indulged that the Treasurer, and the officers whose acts preceded his, had complied with the law. It was not a case in which presumptions could be indulged that the officers had done their duty. They acted under a naked statutory power, with a.view to clivest, upon certain contingencies, the title of the citizen, and in all such cases the purchaser relying upon the execution of the power must show that every preliminary step prescribed by the law has been followed. (Williams v. Peyton's Lessee, 4 Wheat. 78; Varick v.
In connection with this tax deed, the defendants offered the complaint of Mondolet in an action brought by him against one Dufan, as constituting an admission of title in the defendant Dumartheray. It was rejected as evidence for the purpose stated, but was subsequently admitted as evidence of abandonment. The action was brought to recover damages from Dufan, who was Mondolet’s agent, for having allowed the premises to be sold for taxes. In the complaint the plaintiff alleges, that in consequence of the neglect of his agent the premises were sold and redemption was not made, and that the sale thereby became absolute, and that he had in consequence sustained damages to the amount of $1,500. These statements do not amount to an admission of title in the purchaser at the tax sale, and even if they did, the admission would not operate to transfer such title. They only show that Mondolet believed that he had suffered to a certain amount from the neglience of his agent.
The tax deed from the Collector of the City and County of San Francisco, executed in June, 1858, was properly excluded for .uncertainty in the description by which the property was assessed and sold, as set forth in the deed itself. The description is as follows: “A lot on Dupont Street, one hundred and thirty-seven feet and six inches from the north-west corner of Washington Street, with the improvements thereon — 12 x 100.” This description does not state where Dupont or Washington Streets are situated— whether in or out of the city of San Francisco. But assuming that streets by these names exist in the city of San Francisco, it does
3. The proof as to the payment of taxes was properly excluded. Title to another man’s property cannot be acquired by the payment of the taxes thereon. And the payment of the taxes by the occupant in the present case for a portion of the time he was in possession was not of itself, disconnected from other circumstances, evidence that the owner had abandoned the property.
The value of the improvements could not be set off against the damages claimed, as no foundation was laid in the allegations of the answer for any proof on the subject.
4. The charge to the jury on the subject of abandonment was correct. The charge was, that the question of abandonment was one of intention, of which the jury was to judge exclusively, and that in order to do so they must take into consideration all the facts and circumstances before them. The question was correctly stated; it was plainly one of intention to be gathered from the facts. There was little evidence on the subject—none from which the Court would have been warranted in taking it from the jury. There are cases, undoubtedly, in which an abandonment may be inferred from the lapse of time and the delay of the first occupant in asserting his claim to the possession against parties subsequently entering upon the premises. But in such cases the leaving of the premises must have been voluntary, and without any expressed intention to resume the possession. In the case at bar it appears that when Mondolet ceased to occupy in person the premises he left an agent in charge of them. This circumstance is of itself
There was no error in the charge of the Court that the Van Ness Ordinance had no operation in favor of the defendants. By that ordinance the city relinquished and granted all her title and claim to her lands, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the first of January, 1855, provided such possession was continued up to the introduction of the ordinance in the Common Council; or if interrupted by an intruder or trespasser, had been or might be recovered by legal process. The defendant Dumartheray was in the actual possession of the premises in controversy at those periods, but it was a possession acquired by intrusion upon the prior rights of Mondolet. In determining the question whether or not there had been such intrusion, Dumartheray, and those claiming under him, could not invoke the protection of the ordinance.
5. Some doubt is thrown upon the evidence of the witness for the plaintiff, from the contradiction between his testimony and statements in the complaint filed by Mondolet against Dufan. Still the plaintiff’s case would not be materially changed if we suppose the personal occupation of the premises by Mondolet ceased in September, 1850, and that the subsequent occupation until the fire in June, 1851, was by his agent. The question of the prior possession of Mondolet was distinctly left to the jury, and there is not sufficient in the doubts created as to the statements of the witness to justify any interference with their action. A verdict is not to be disturbed where the evidence is merely conflicting. The jury having the witnesses before them are the most competent judges of the weight to be attached to their testimony; and it is not sufficient that an appellate Court, looking at the testimony as it is written down, would have come to a different conclusion.
Judgment affirmed.
The appellants applied for a rehearing on the grounds :
1st. That the Court had not in its opinion passed upon the ques*305 tion whether the tax deed, under which Dumartheray entered and which was found invalid, was or was not sufficient to constitute a color of title, and therefore a good defense to prior possession.
2d. That as against the defendant Cannovan the judgment should be modified, so that no damages for the value of the use and occupation should be recoverable against him, as it appeared from the record that he was a tenant of Dmnartheray and paid rent to him.
Field, C. J. delivered the opinion of the Court on the petition—Cope, J. concurring.
The possession of Mondolet was evidence of seizin in fee in him, and no further or higher evidence of title was required to enable the plaintiff, claiming through him, to recover, until the defendant had shown an anterior possession or had traced title from a paramount source. (Day v. Alverson, 9 Wend. 223; Hill v. Draper, 10 Barb. 458.) It is immaterial in this view whether we consider the tax deed to Dmnartheray sufficient to constitute color of title or otherwise.
The fact that Cannovan was a mere tenant of Dmnartheray, and had paid rent for the premises, does not release him from liability to the plaintiff. The action of ejectment lies only against the occupant of the premises, and to him the plaintiff must look for compensation for their use. If Cannovan has already paid the rent, he can have recourse upon his landlord for any further sum he may be compelled to pay by the present action.
Rehearing denied.