273 P. 606 | Cal. Ct. App. | 1928
This is an appeal from a decree adjudging plaintiff to be the owner of certain real property in Monterey County and quieting her title against the claims of defendants.
It is conceded that on and for a long time prior to June 24, 1912, Mary A. Wagner was the owner in fee simple and in the exclusive possession of lot 10 and the northerly one-half of lot 12, in block 132, of Carmel-by-the-Sea, Monterey County; also that she died on June 14, 1924, and that the defendant Anna S. Fisher is, and was at the time of the trial of the action, the duly appointed, qualified, and acting administratrix of the estate of Mary A. Wagner, deceased. It is also conceded that on and for a long time prior to June 24, 1912, the defendant Nettie E. Wagner was the owner in fee simple and in the possession of the southerly one-half of lot 12, block 132, Carmel-by-the-Sea. It is further conceded that the title and right of possession, which the plaintiff claims in and to the lands and premises involved in the action, is based upon a certain tax deed dated July 16, 1917, from J.E. Hunter, tax collector of Monterey County, to the state of California, recorded July 18, 1917, in volume 13 of tax deeds, page 190, Monterey County records, conveying to the state of California for the sum of $1.42 that certain real property in the county of Monterey, state of California, and more particularly described as follows: "As per map of Carmel-by-the-Sea, Lot 10, Block 132"; also another tax deed made by the same grantor to the same *52 grantee dated July 16, 1917, and recorded July 18, 1917, and conveying for the sum of ninety-six cents that certain real property in the county of Monterey, state of California, and more particularly described as follows: "As per map of Carmel-by-the-Sea, Lots, one-half of Lot 12, Block 132"; that by deed dated May 17, 1923, J.E. Hunter, tax collector of Monterey County, conveyed to Wade Stewart the real property in dispute, described as situate in the county of Monterey, state of California, and more particularly described as follows: "Property sold to the State June 24, 1912, for tax of 1911, as per map of Carmel-by-the-Sea, Lot 10, Block 132; as per map Carmel-by-the-Sea, one-half of Lot 12, Block 132, which deed was recorded May 21, 1923, in Liber 17 of Official Records, Folio 310, Monterey County Records." It is further conceded that Wade Stewart died during the pendency of the action and that on May 17, 1925, after due and regular proceedings had therefor in the matter of the estate of Wade Stewart, deceased, the superior court of Monterey County duly made and entered its order assigning the whole of the estate, including whatever interest the deceased had in and to the property in controversy, to the present plaintiff herein, Maude M. Stewart, the widow of Wade Stewart, deceased.
[1] Appellants contend that the tax deeds through which plaintiff derived title are void; that, as held in Pretty v.Warden,
On the date when the assessor of Monterey County prepared the 1911 assessment-roll Carmel-by-the-Sea was not an incorporated town and did not become a town of the sixth class until October 31, 1916, and it is conceded that the lots in question were listed under subdivision 2 of section 3650 of the Political Code. This section provides: "The assessor must prepare an assessment book with appropriate headings as directed by the state board of equalization, in which must be listed all property within the county and which shall show under appropriate headings; . . . Subdivision 2. Land by township, range, section, or fraction of section; and when such land is not a congressional division or subdivision, by metes and bounds or other description to identify it; city and town lots, naming the city or town and the number of lot and block according to the system of numbering in said city or town," etc.
By stipulation of the parties it appears as a fact in the case that the map of "Carmel-by-the-Sea" is a map of record in the office of the county recorder of Monterey County and was of record in Map Book 1 at page 2, on March 7, 1902, and that in the same volume at page 52 there is another map showing the same property — that is, lots 10 and 12, block 132, appear on each of such maps in every respect identical. As to the map on page 2, the stipulated facts show it to be a "map of Carmel-by-the-Sea," while no title, so far as the stipulated facts show, appears on the map recorded on page 52. *54
Appellants rely on the case of Cadwalader v. Nash,
If the language of the court in Baird v. Monroe, supra, announces the correct rule, it is decisive of the objection urged against the descriptions as being uncertain because of their being two maps. Appellants contend that as it appears from the evidence in the Baird case that there was but one map of the Pellissier tract in the county of Los Angeles *55 the language of the court above quoted is mere dicta. While it is true that this language was not indispensable to the conclusion reached in the decision, we think it states the correct rule and the descriptions here sufficiently comply with the provisions of section 3650, subdivision 2, of the Political Code as a "description sufficient to identify it," as against the first objection urged.
[2] As to the description contained in the assessment and tax deed with respect to the one-half of lot 12, block 132, assessed to defendant Nettie E. Wagner, who it is conceded was the owner of the south one-half of such lot, and which was assessed and deeded as "one-half of Lot 12, Block 132," we think the description is void for uncertainty in that it cannot be ascertained from the description which half of the lot is attempted to be described. In Harvey v. Meyer,
We have examined the cases cited by respondent to support her contention that the description "one-half of lot 12" means an undivided one-half and that therefore respondent's tax deed makes her a tenant in common with appellant Nellie E. Wagner, who, it was conceded at the trial, was the owner of the south one-half of lot 12, and who paid the taxes levied and assessed against her property for the year 1911. The cases cited are not in point as they *56
all involve conveyances between private persons, while here we are concerned with a conveyance based upon tax proceedings which are in invitum. "A description sufficiently certain to convey land between man and man, and which if contained in an agreement to convey, would authorize the court of equity to decree specific execution, would not answer in the proceeding to enforce the collection of a tax" (Commercial Nat. Bank v. Schlitz,
That part of the decree in which it is adjudged that plaintiff is the owner and entitled to the possession of lot 10 in block 132, as laid down and designated upon that certain map entitled "map of Carmel-by-the-Sea, Monterey County, State of California," and quieting her title against the claims of defendants, is affirmed; and that part of the decree adjudging plaintiff to be the owner of an undivided one-half interest in and to lot 12, block 132, as laid down and described on that certain map entitled "map of Carmel-by-the-Sea, *57 Monterey County, State of California," and quieting her title thereto, is reversed. Each party to pay his and her own costs of appeal.
Knight, Acting P.J., and Cashin, J., concurred.