Opinion
Appeal from a judgment of the Superior Court of Placer County, and from an order refusing a new trial.
COUNSEL:
C. A. & F. P. Tuttle, for Appellant.
Hale & Craig, for Respondent.
JUDGES: In Bank. McKee, J., dissenting.
OPINION
THE COURT The deed of the tax collector conveyed no title. Inasmuch as the bill of exceptions shows no evidence or offer of evidence tending to prove that defendant or her grantor entered under the deed, -- or continued to hold adverse possession thereunder, -- the deed cannot be claimed to have been admitted to extend the limits of an adverse possession. The tax deed being void, the defendant could not rely on the assessment as translative of title. (Grimm v. O'Connell , 54 Cal. 522; Hearst v. Eggleston , 55 Cal. 367.)
But as the court below directed a judgment for the defendant, it is suggested that the judgment may have been based on evidence proving an adverse possession. This is true, but it is also true that the court may have ordered the judgment upon the assumption that the defendant had acquired the title by virtue of her deraignment from the purchaser at the tax collector's sale.
The Code of Civil Procedure provides that in a bill of exceptions "the objection must be stated with so much of the evidence or other matter as is necessary to explain it, and no more." (Sec. 648.)
When the bill of exceptions reaches us we must presume that all the evidence tending to explain the objection taken is inserted in the bill. If from such evidence it appears that the court below e rred in ruling against the appellant as to a [10 P. 204] material matter, this is ground for reversal.
We must take it for granted that the judge of the trial court, in settling a bill of exceptions, will see to it that sufficient of the testimony as will sustain his ruling, if any such was given, is incorporated in the bill of exceptions.
Judgment reversed, and cause remanded for a new new trial, with leave to the parties to amend their pleadings as they may be advised.
DISSENT:
McKEE
McKee, J., dissenting. I dissent. The question arising out of the record on appeal in this cause is, whether the court below erred in overruling objections made at the trial of the cause to the admissibility in evidence of tax deed offered by defendant.
Defendant's answer contained a special defense of the statute of limitations.
On the trial of the issues raised by the answer the tax deed was admissible in evidence for the purpose of showing adverse entry and occupation by the defendant under it for the statutory period, and thus proving title under sections 322 and 323, Code of Civil Procedure.
No doubt the deed itself would not be sufficient evidence of an adverse possession. But that is not the question. The question is, Was it admissible in connection with other evidence of such a possession? for as the ruling of the court upon the admissibility of the deed is the only ruling challenged and sought to be reviewed, and as the defendant had judgment, this court is bound to presume that there was sufficient evidence to sustain the judgment.
I think there was no error in admitting the deed in evidence.