4 P.2d 219 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *357 The action is one to quiet title. The defendants, other than K.G. Smith, are fictitious persons. Appearance was made by but one defendant, K.G. Smith, and the issues as joined were between this defendant and the plaintiffs. From a decree establishing title in defendant, plaintiffs appeal.
Before taking up the questions presented by appellants, we have the contention of the respondent to the effect that appellants failed to show any semblance of title in themselves and that therefore they cannot be heard to complain of the weakness of respondent's title. The argument of respondent is based upon the fact that the evidence supporting plaintiffs' title consisted of the official record of a deed conveying the property to them as executors, and a duly authenticated copy of decree of distribution vesting the estate in them as individuals. The burden of the argument is that the introduction of the record was improper and in itself insufficient in the absence of proof of loss of the original conveyance. As far as the record before us discloses, no objection was made to the offer or the admission in the court below. [1] The only record we have is the certified transcript on appeal, which recites merely that plaintiffs introduced in evidence the duly acknowledged deed, in deed book 2824, records of Los Angeles County, conveying to them the property in controversy. From the bare record we must assume, if preliminary proof were necessary to entitle the record to admission, that such proof was offered prior to the admission of the record. [2] And further, in the absence of any objection or motion to strike, secondary evidence may become primary. The rule has always been *358
that secondary evidence is admissible under certain circumstances and that when admitted will serve as proof of the fact in dispute. [3] Passing both of these features of the argument, we can find a complete solution of the point in the code section and the authorities construing same. (Code Civ. Proc., sec. 1951;Pray v. Anthony,
We may now consider the points of appellants. The title to the property was found to be in the defendant upon two grounds: First, that title thereto had been acquired by prescription and second, that defendant had acquired the title through a tax sale. We will first consider the question of prescription.
[4] The testimony brought before us in the transcript is quite meager. However, not one word of testimony discloses that the defendant K.G. Smith ever saw the property involved or ever made any claim thereto. The entire activity shown is that of one L.J. Smith, husband of the said K.G. Smith. Respondent contends this to be immaterial by reason of the law providing that all property acquired by either spouse during coverture, other than by bequest, devise or gift, is community property. It is difficult to follow this reasoning. It may be true, and no doubt is, that after title vests in the husband, the property would be community property, but it would seem to be stretching the idea of the community a trifle too far to contend that a community interest arose from the inception of the adverse claim, sufficient to make every act of the husband that of the wife in as far as the essentials of a prescription might be involved.[5] The right of the wife in property conceded to be community *359
property is not a vested right. In the case of Stewart v.Stewart, which case was practically twice decided (
In the present action there is not even an attempt to have the property decreed as community property but the claim of title, and the title as found, is exclusively in the wife. If the wife acquired this property through prescription, it must be because all of the essentials of a prescriptive title have been shown. As noted, the defendant wife offered no evidence at all concerning her activities in the matter. She made no claim of ownership, adverse or otherwise, during the period of alleged holding; she was never shown to have been in possession of the property. We cannot conceive how she acquired any title thereto prior to the time the husband acquired title, in the face of the law that she would acquire no title even after the husband had become vested with the title through the prescription. We may, however, pass this point entirely and assume for the purposes of discussion, that the holding of the husband and his actions could be accredited to the wife. The record fails to disclose the presence of all of the elements necessary to constitute a complete title through prescription.
[6] The testimony of L.J. Smith, the husband, shows as follows: In 1920 he owned the lot next to the lot in *360
dispute. He wanted to buy the lot in question to keep someone from building on it and so he went to the title company to ascertain the owner thereof, in order that he might purchase. Stopping here, it seems conclusive that at that time, which was in February or March, 1921, there was no assertion of any claim of ownership or right, but expressly an acknowledgment of no claim at all. Continuing with the testimony, he learned at that time that the property was going to be sold for taxes in July, and in July he went up and bought the tax title. This was on July 26, 1921. In the month of about April or May he had procured lumber to build a garage but did not build until after he had bought the lot at the tax sale. After he had bid in the property, but before deed, he went to some man who told him it was all right to build, and he did. He used the place off and on when down there and when he was not there he rented it two or three different times to people who wanted it. The man that lives next door used it but paid nothing. In addition to the foregoing there is evidence, undisputed, that he, Smith, fenced two sides of the lot, leaving unfenced the side next to his own property and also the side next to the sidewalk, presumably the street. From the foregoing it is apparent that there is a lack of proof showing exclusive possession on the part of Smith, inasmuch as such possession as is shown appears to have been joint with some neighbor, with no word of evidence disclosing the nature of the possession by the latter. Under the record this man next door could assert as strong a title as does Smith. Further, the purchase of the tax title, under the evidence, discloses not an intent to claim the property adversely and against the whole world, but rather an effort to secure the rights of the delinquent owner. The testimony that Smith used the lot whenever he was down there is far too indefinite to support a claim of hostile, exclusive and continuous possession. [7] There are no equities in favor of a party seeking by adverse holding to acquire the property of another. (Glowner v. De Alvarez,
[9] It is conceded that the payment of taxes is one of the essential elements of acquiring title by adverse possession. The title cannot ripen in the adverse claimant without the payment of taxes. At the time of the filing of the action herein, the last half of the Los Angeles city taxes had not been paid and were delinquent. Subsequent to the filing of the action, the property was redeemed by the defendant. It would follow that when the suit was commenced the defendant had not paid all taxes and assessments levied upon the property during the five-year period. Without question, the filing of the suit was a break in the continuity and peace of the adverse holding, and the rights of the parties were to be determined as of the date of suit. It may be true that a different situation would be present if the tax had been levied and not yet due, as it is manifest that there can be no duty of payment until the same is due. However, the taxes delinquent had been long due prior to the commencement of the suit and unpaid. Authority need not be cited as to the necessity of the payment of taxes as an element of adverse holding. However, reference may be had to the following cases: Glowner
v. De Alvarez, supra; Cavanaugh v. Jackson,
All in all, we conclude that the necessary elements going to create a title by prescription or adverse possession have not been shown. No personal right in the defendant appears, nor does any act on her part at all connect her with the property. The possession, or claimed possession of the husband, lacked continuity or hostility and the taxes were not paid. Indeed, on almost every phase of the case we have but a suggestion. [10]
As has been said in some of the earlier cases, among which may be cited Curtis v. Le Grande Water Co.,
[11] We come then to the claim of defendant based upon the tax deed. It is the contention of appellants that the tax deed was void and conveyed no title. It is unnecessary to recite the contentions of either party on this phase of the case. It is indisputable that the notice of delinquency is exactly the same as that before the District Court of Appeal and the Supreme Court in the following cases: Bussenius v. Warden,
For the reasons hereinbefore stated, the judgment is reversed.
Tyler, P.J., and Knight, J., concurred.
