43 Cal. 643 | Cal. | 1872
By the Court,
It is not averred in the complaint that the defendant Kennedy had any actual notice of the extrinsic facts relied upon, to impeach the judgment on which the execution issued', under which he purchased the property in controversy.. He is, therefore, to be deemed a purchaser without notice of these facts. The plaintiff assails the judgment, and claims that it is void on two grounds, viz: First, by reason of facts appearing on the face of the record which, it is alleged, show
It is unnecessary, for the purposes of this case, to examine the reasoning on which these decisions are founded. But if the peculiar facts of those cases should take them out of the general rule to which I have adverted, it would only prove that the rule, in its broadest sense, is hot wholly without an exception, and would not impugn the rule itself. If an unauthorized appearance by an attorney, for a non-resident defendant, who was not served with process, can be after-wards shown to invalidate the title of a bona fide purchaser without notice, at the execution sale, it stands, so far as I am aware, as a solitary exception to the general rule, and the doctrine ought not to be further extended. I am, there
I am, therefore, of opinion that the judgment, execution, and the sale thereunder to the defendant Kennedy, are valid. The plaintiff, however, contends that if all this be conceded, Kennedy acquired no title as against the plaintiff, who purchased the property without either actual or constructive notice of the pendency of the action. The complaint alleges and the demurrer admits that no notice of Us pendens was filed, and that the plaintiff had no actual notice of the pendency of the action. But in this class of cases a notice of Us pendens is unnecessary. By the third section of the Revenue Act of May 17th, 1861, it is provided that “ every tax levied under the provisions or authority of this Act is hereby made a lien against the property assessed, which lien shall attach on the first Monday in March in each year, and shall
The assessment of lands, and the lien which it creates, are public matters of record, of which all purchasers are bound to take notice; and when a purchaser buys land which is subject to an existing lien-for taxes, he must see at his peril that the taxes are paid; and if he neglects this duty he takes the hazard of a judgment against the land, the lien of which, by operation of law and by relation, will antedate his purchase. If the rule were otherwise, it would be necessary in an action to foreclose a tax lien to bring in as defendants all purchasers and incumbrancers subsequent to the assessment and prior to the commencement of the action, and the effect of the judgment in a large number of cases would be practically defeated by secret unrecorded conveyances which
Judgment affirmed.