(94 Cal. 653)

1. Where a certificate of tax sale recites that the property was assessed to D., "and to all owners and claimants known and unknown," and the language quoted did not appear in the tax deed, the deed was void, under Pol. Code, § 3786, providing that "the matters recited in the cer tificate of sale must be recited in the tax deed. "

2. Defendants owned uninclosed land, on which various ranchers' cattle grazed at will. Plaintiff held a tax deed for defendant's land, and leased it for five years to M., a rancher, who also grazed his cattle thereon, and under the terms of his lease, to build shelter for "three valuable domestic animals," he built a shed ten feet square, inclosed on three sides, which was intended to be used by plaintiff as evidence of possession. Defendant had no notice of plaintiff's

claim or of his lease to M. till about six months before the expiration of the lease, when he undertook to build a house on the land, and was told by the lessee while building the house that he claimed possession. Defendant completed the house, and buiit a fence on part of the land. After the expiration of M.'s lease, and while defendant and his employe were absent from the house, plaintiff took possession, and forcibly prevented defendant from re-entering. The land was assessed to defendant, who paid the taxes during all the time of the lease. Held, that plaintiff did not have adverse possession, under Code Civil Proc. § 323, providing that, to constitute adverse possession of land not inclosed, it must have been used for "purposes of husbandry, or for pasture, or for ordinary use of the occupant. ""

Commissioners' decision. Department 2. Appeal from superior court, Marin county; E. B. MAHON, Judge.

Action by P. A. De Frieze against Elizabeth Quint, administratrix of Leander Quint, deceased. Judgment for plaintiff. Defendant appeals. Reversed.

W. H. Payson and Hepburn & Wilkins, for appellant. McKoon & Towle and Geo. W. Towle, Jr., for respondent.

VANCLIEF, C. Action to quiet plaintiff's allged title to a tract of swamp and overflowed land containing 91 acres, situated in Marin county. The action was brought against Leander Quint in his lifetime, for whom the administratrix of his estate was substituted before trial. Judgment passed for plaintiff, and defendant appeals therefrom, and also from an order denying her motion for new trial. The defendv.30P.no.1-1

ant claimed title by a grant, bargain, and sale deed from plaintiff, reciting a paid consideration of $150, and executed January 18, 1879. The plaintiff claims title by a tax deed executed to him by the tax collector of Marin county on March 1, 1880; and also by prescription, alleging adverse possession under the tax deed during five years before the commencement of the action. The recitals in the tax deed show that the taxes for which the land was sold to plaintiff were state and county taxes assessed to John De Frieze for the fiscal year ending June 30, 1879, amounting to $1.55, and that the property was sold to plaintiff for this sum, plus costs and charges, altogether amounting to $2.73. The title was not traced to any higher source than the plaintiff, though the description of the land in the deed of January 18, 1879, from plaintiff to defendant, closes as follows: "For more particular description, see patent recorded in Liber A, page 377, of Records of Marin County." The patent referred to was not put in evidence, but in rebuttal plaintiff's counsel read in evidence the description of the land from the record of that patent, which appeared to be the same as that contained in the deed of plaintiff to the defendant, but did not read enough to show who was the patentee. There is nothing in the record tending to prove that John De Frieze was the patentee, or that he ever owned the land in question, except that the tax for which the land was sold was assessed to him. Finally, it does not appear how, or from whom, plaintiff originally acquired title to the land before the date of his deed to defendant; yet he is estopped by his deed to defendant, purporting to grant the absolute title, from denying that, before and at the date of that deed, he had such absolute title, and, by that deed, conveyed it to the defendant, (Belcher, etc., Min. Co. v. Deferrari, 62 Cal. 160; Dodge v. Walley, 22 Cal. 228; Haffley v. Maier, 13 Cal. 13; Clark v. Baker, 14 Cal. 613;) and it is also clear that, if any title passed by the tax deed, such title would have inured to the benefit of the defendant alone. But it appears that the tax deed was utterly void. The certificate of the tax sale, introduced by plaintiff as a part of his evidence in chief, states that the property was assessed to "John De Frieze, and to all

owners and claimants, known and unknown." These words in italics do not appear in the tax deed, as required by section 3786 of the Political Code, although it appears that they were recited in the deed as drawn, but were stricken out before the deed was executed; thus showing that section 3786 of the Political Code was deliberately disregarded. Counsel for re spondent contend that the deed alone can be received as evidence of the assessment, and that the certificate of sale put in evidence by plaintiff as a foundation for the deed must be disregarded. In this I think counsel are mistaken. The deed is only "primary (prima facie) evidence "that the property was assessed as required by law," and this rests on the disputable presumption that the matters recited in the certificate are recited in the deed as required by section 3786 of the Political Code. Here the plaintiff proved by the certificate that the property was not assessed as required by law, before the deed was offered in evidence. Section 3776 of the Political Code requires the certificate to state (when known) "the name of the person assessed," while the deed is required to recite only the matters recited in the certificate. By first introducing the certificate the plaintiff proved, not only that the property was not lawfully assessed, (Daly v. Ah Goon, 64 Cal. 512, 2 Pac. Rep. 401,) but also that the deed did not contain the recitals required by law.

Plaintiff's main reliance, however, is up. on title by prescription, arising from his alleged adverse possession. The evidence relied upon to prove adverse possession tended to prove only the following facts: Three years and five months after the execution of the tax deed, to wit, on August 13, 1883, the plaintiff executed to Bernard T. Miller a lease of the land in question for the term of five years, at a rental of $25 per year, the lessee covenanting to construct upon the premises, within 20 days from the date of the lease, "a building suitable to afford protection in winter to at least three valuable domestic animals." At the time of the execution of this lease the land had no improvements upon it, and never had been inclosed, cultivated, nor occupied by any person. The greater portion of it was low, boggy land, but during portions of the year it afforded feed for cattle which had been accustomed to grazę upon it. James Miller, the father of the lessee, had a ranch adjoining the leased premises, on the west side thereof, but which was not fenced on that side. "Cattle could roam at will over this land (land) in question) from any contiguous land.” James Miller kept a dairy and a number of cows on his ranch. About the time that Bernard T. Miller took the lease from plaintiff he also leased from his father, James Miller, the latter's dairy and cows, and thereafter allowed these cows, with others of his own, to graze upon the leased land, but without a herder, except to drive the cows from the land for the purpose of milking, and to return them after milking. The cows were not confined to the leased land, but could graze upon other adjoining land; and there was nothing to prevent the cattle of other per

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sons from grazing upon the leased land. Being asked if other cattle than his own were pastured upon it during the term of the lease, Bernard Miller answered: "They might have been. Icannot say positively. Cattle get back and forth on the ranches once in a while. I could not say positively whether there were or not. never remembered seeing any cattle on there excepting my own and those I had rented from my father.' About a month after the date of the lease, B. F. Miller constructed a shed on the land, sufficient to shelter three cows, by setting a post in the ground at each of the four corners, and covering it with boards, and also boarding up three sides of it, but leaving one side open. This was the only improvement placed upon the land by him or plaintiff, and it does not appear whether the shed was ever used by him or not. During the first four years of the lease he resided about a half mile from the land, but within sight of it, and during the remainder of the term be resided further from the land. It does not appear that he personally attended to the dairy, but does appear that he was absent from it a considerable portion of the time. n the way above described, he used the land in question during a term of five years before the commencement of this action, but in no other way. It does not appear that his lease was recorded, nor that defendant had actual notice of it, or notice that he used or claimed the land for any purpose during the first four and a half years of the alleged adverse possession. About five months before the alleged five years of adverse possession expired the defendant erected a house upon the land, 20 feet long by 12 feet wide, in which his employe resided several weeks immediately after it was built, and it was while this house was being built that Miller first notified defendant that he (Miller) had a lease of the land and claimed the possession of it. Defendant also built a fence on a portion of the line between the land in question and the land of James Miller immediately after building the house. After the expiration of Miller's lease, and while defendant and his employe were absent from the house, the plaintiff took possession of it, and forcibly prevented them from re-entering. The tax deed to plaintiff was recorded March 1, 1880, and the plaintiff paid the taxes on the land for the years 1881, 1883, 1884, 1885, 1886, 1887, and 1888, said taxes having been assessed to him for those years; but there is no evidence that defendant had actual notice of the deed, or that plaintiff paid the taxes or claimed the land until after defendant built the house on the land. At no time after the execution of the tax deed was plaintiff in the possession of any part of the land, unless he was so by his tenant, Miller, until he took possession of the house built by defendant, as above stated.

On the facts above described counsel for appellant contend: First. That the tax deed gave plaintiff no color of title because he obtained it in bad faith, and for the mere purpose of creating a sham color of title. Second. That, even conceding that the tax deed gave color of title, the plain