273 P. 786 | Cal. | 1929
Action brought to quiet title to certain real property situated in the county of Los Angeles. The appellant relies upon a tax deed issued to him by the tax collector of said county on the thirty-first day of July, 1922. If this tax deed is invalid by reason of any of the irregularities mentioned by the respondent, then the judgment should be affirmed. Otherwise, it should be reversed, unless one of the other objections made to said judgment by appellant is well founded.
[1] The delinquent tax list, together with the notice appended thereto, were identical in form with the delinquent tax list and notice involved in the case of Bussenius v. Warden,
[2] There is no merit in appellant's contention that the judgment is erroneous in that it does not require that respondent repay or refund the amount paid by the appellant as taxes, penalties and costs. Subdivision 5 of section 3898 of the Political Code provides for such repayment or refund in certain cases where by decree of court the deed issued by the tax collector upon a sale for delinquent taxes is declared void.
Appellant relies upon Holland v. Hotchkiss,
"In its decision the trial court, among other things, found that plaintiff's claim of title was based upon `an alleged sale of said property for alleged delinquent taxes for the fiscal years 1914-15, and upon alleged conveyances executed to plaintiff's predecessor in interest, R.G. Biaggi, pursuant to said alleged delinquency and pursuant to said alleged sale.' In this connection respondent calls our attention to subdivision 5 of section 3898 of the Political Code, which provides that in an action of this kind no decree of forfeiture shall be given `until the former owner, or other party in interest, *230 shall have repaid to the purchaser the full amount of taxes, penalties and costs paid out and expended by him.' The finding was unnecessary to the judgment. Furthermore, we note that the court did not find that there was in fact a delinquency on the property in question, or that there was in fact a sale of the property for such delinquency. Neither did it find that plaintiff or his predecessors in interest ever paid any sum whatever for taxes, penalties or costs. In the absence of any evidence showing such payment it must be assumed that there was no evidence in that respect. Had the court made a decree quieting title in defendants, it may be that such decree should have been conditioned on payment of the moneys paid by plaintiff in pursuit of the tax title, but this question does not arise in this case for the reason that the title was not decreed in anyone. If plaintiff is not aggrieved by a judgment declaring someone else to be the owner when he has shown no title in the land in himself, this plaintiff cannot be heard to complain of this judgment."
While the present appeal is not upon the judgment-roll, and accordingly the evidence before the trial court is a part of the record on appeal, we fail to find anything in the evidence that would have enabled the trial court to fix the amount of the taxes, penalties, etc., expended by the appellant, nor does the record contain any attempt or offer on appellant's part to prove this amount, nor any demand or request by appellant that the trial court determine the amount thus expended by appellant. The tax deed under which the appellant claims title to said real property called for 158.18 acres of land, while the amount of land described in the judgment was only eighty acres. Under these circumstances there was no duty resting upon the trial court to determine any amount to be repaid appellant, and the judgment is not erroneous for its failure to contain a direction to respondent to make repayment of such amount.
[3] The further contention is made by appellant that as the respondent offered no proof of her ownership of the land described in her answer, it was error for the court to have rendered the judgment which it did in this action. This contention is based upon the claim of appellant that by the introduction of the tax deed the appellant made out a primafacie case in his favor. This claim, of course, has *231
no foundation upon which to rest. The court held the tax deed void. Plaintiff, therefore, failed to make a prima facie case that he was the owner of said real property. Having failed to establish any title in himself, the appellant's case utterly failed. It is hardly necessary to cite an authority in support of the well-established principle of law that in an action to quiet title the plaintiff must recover on the strength of his own title rather than any weakness of the defendant's. It has been repeatedly so held by this court. We will only cite among the many cases decided by this court in which this point was directly determined the following: Rockey v. Vieux,
The judgment is affirmed.
Preston, J., and Seawell, J., concurred.
Hearing in Bank denied.
All the Justices present concurred.