Opinion
APPEAL from a judgment of the Superior Court of the county of San Diego, and from an order refusing a new trial.
COUNSEL:
John R. Jones, for Appellant.
Conklin & Hunsaker, for Respondents.
OPINION
PER CURIAM.
The facts are stated in the opinion of the court.
The only question in this case which it is necessary for us to decide relates to the validity of a certain tax deed offered in evidence by defendants.
The action was ejectment, and the plaintiff made out a prima facie case. To defeat his right of recovery defendants relied upon a sale of the land for taxes, and a deed in pursuance of such sale. The certificate of sale shows that the lot in controversy was assessed to G. A. Hemenway, and to all owners and claimants known or unknown.
It has been held in several cases that such an assessment is void, and the question is, does such a void certificate affect and defeat a deed, valid upon its face? We think it does. Section 3786 of the Political Code requires that "the matters recited in the certificate of sale must be recited in the deed, and such deed duly acknowledged and proved is primary evidence." This requisition of the statute must be complied with. ( Grimm v. O'Connell, 54 Cal. 522; Anderson v. Hancock, 64 Cal. 455.)
If the deed offered in evidence in this case had followed the law, and contained the recitals found in the certificate, it would have been void on its face, and it was competent for the plaintiff to defeat it by evidence aliunde.
The motion to dismiss the appeal was denied October 10, 1883.
Judgment and order reversed.