Keane v. Cannovan

         I. It was clearly proper for the Court not only to allow the plaintiff to prove that Mondolet was in possession, but that he entered under color of title, and while so being in possession he claimed under color of title.

         II. There was no error in refusing to allow the tax deed from Buckingham to Dumartheray to be read in evidence. The statute of 1857 has no application to the Buckingham deed given in 1851. (Beekman v. Bingham, 1 Seld. 366; Stryker v. Kelley , 2 Denio, 323; Varick v. Tallman, 2 Barb. 113.) As no title passed by the deed, no presumptions will be indulgedin by reason of the deed " being ten years old." The complaint in the case of Mondolet v. Dufan was inadmissible for any purpose, and was clearly inadmissible as constituting an admission of title in the defendant Dumartheray.

         III. There was no error in the Court refusing to allow the defendants to prove the payment of taxes by Dumartheray for a portion of the time in which he had been in possession. Dumartheray could acquire no title by so doing. In equity he was bound to pay them, and the payments are to be regarded as advancements for the benefit of the owner. (Kelley v. Abbott , 13 Cal. 619.)

         IV. The Court properly refused to allow the defendants to prove the value of their improvements by way of " set-off," no improvements having been pleaded.

         V. There was no error in the Court refusing to allow the tax deed from Patch, Collector, to be read in evidence. (Sharp v. Spier, 4 Hill, 76, 90, 91; Sharp v. Johnson, Id. 102, 103; 2 Comst. 170-172; 2 Barb. 344; 4 Denio, 237; Blackwell, 151-154, 330; Id. 450, sec. 16; 4 Hill, 76-91, et seq.; 8 Cal. 344; Tallman v. White, 2 Comst. 66; Lessee of Perkins v. Dibble, 10 Ohio, 433; Burchard v. Hubbard et al. , 11 Id. 316.)

         VI. The recitals of the deed from Patch, Tax Collector, were insufficient for any purpose. (1 McLean, 321; Gould's Pl. 189, sec. 29, 3d ed.; 1 Comst. 79; 13 Cal. 609; Loher v. Latham , 15 Id. 418-420.)

         VII. The tax deed from Patch, the Collector, was not prima facie evidence of the facts therein contained. (Ferris v. Coover , 10 Cal. 589, 632, 633; Kelsey v. Abbott , 13 Id. 609, 619; Lackman v. Clark , 14 Id. 131; 2 Comst. 66; 2 Denio, 323; 1 Seld. 366; 2 Barb. 113.)

         VIII. There was no error in the Court refusing to allow the defendants to show by parol testimony the meaning of the figures 12x100. (Blackwell, 152-154 note.)

         IX. The Court committed no error in submitting the question of abandonment to the jury, and in charging the jury that the Van Ness Ordinance had nothing to do with this case. (10 Cal. 589; Act of Assembly of Penn., passed Dec. 30th, 1786; 1 Watts, 46-49, 52; 1 Serg. & R. 120; 5 Serg. & Watts, 284-301; 4 Yeates, 534; Whitney v. Wright, 15 Wend. 171; 8 Cal. 144, affirmed in Id. 223; 9 Id. 5; 10 Id. 183, and cases there cited by respondent's counsel; Laws of 1858, 54, sec. 9.)

         X. Dumartheray couldacquire no title under the tax deed from Patch to Bartlett, his grantor. (Blackwell, 460-471; 10 Cal. 609; 22 Maine, 371; 12 Ill. 442.)

         XI. The tax deed from Buckingham to Dumartheray being nine years old, is not to be regarded as an ancient deed, and nothing will be presumed in relation to it. (6 Wheat. 119; Blackwell, 48, 88, 89, 604; Allen v. Smith, 1 Leigh, 231; 4 Hill, 86; 4 Wheat. 77, et seq.; Thatcher v. Powell , 6 Id. 119; Blackwell, 619; Ex parte Newman , 9 Cal. 526.)

         JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. and Norton, J. concurring.

         OPINION

          FIELD, Judge

         The appellants applied for a rehearing on the grounds:

         1st. That the Court had not in its opinion passed upon the question whether the tax deed, under which Dumartheray entered and which was found invalid, was or was not sufficient to constitute a color of title, and therefore a good defense to prior possession.

         2d. That as against the defendant Cannovan the judgment should be modified, so that no damages for the value of the use and occupation should be recoverable against him, as it appeared from the record that he was a tenant of Dumartheray and paid rent to him.

         Field, C. J. delivered the opinion of the Court on the petition. Cope, J. concurring.

         The possession of Mondolet was evidence of seizin in fee in him, and no further or higher evidence of title was required to enable the plaintiff, claiming through him, to recover, until the defendant had shown an anterior possession or had traced title from a paramount source. (Day v. Alverson, 9 Wend. 223; Hill v. Draper, 10 Barb. 458.) It is immaterial in this view whether we consider the tax deed to Dumartheray sufficient to constitute color of title or otherwise.

         The fact that Cannovan was a mere tenant of Dumartheray, and had paid rent for the premises, does not release him from liability to the plaintiff. The action of ejectment lies only against the occupant of the premises, and to him the plaintiff must look for compensation for their use. If Cannovan has already paid the rent, he can have recourse upon his landlord for any further sum he may be compelled to pay by the present action.

         Rehearing denied.