Norris v. Russell

Citations

• 5 Cal. 249
• 1855 Cal. LEXIS 99

Syllabus

<p>A complaint in ejectment need not aver title in the plaintiff, but an averment of his prior possession, and an ouster, is sufficient.</p> <p>Prior possession is evidence of title, and this can not, by any system of reasoning, be made to yield to mere color of title.</p> <p>To sustain a title by virtue of a Tax Collector’s deed, it has, by the best authorities, been held, that every pre requisite to the exercise of the power of sale by the officer must be shown to have been accomplished.</p> <p>Our statute makes Tax Collectors’ deeds prima fade evidence of title.</p> <p>One of the pre-requisites to the validity of a tax sale is the authority under which the taxes are assessed.</p> <p>The defendant attempted to show an Ordinance of the City of Sacramento, but offered only a newspaper copy of it. In support of this, as secondary evidence, the counsel for the defendant swore to a search for the original, which he himself had made in a book of Ordinances handed him by the keeper of the City Archives. Held, that the evidence was properly excluded, because this was an insufficient predicate.</p> <p>The search should have been made and testified to by the keeper of the records, or he should have been subpoenaed to bring into Court with him the original Ordinance, and then, upon his failure to find it, after diligent search, the copy, if established to be correct, would have been admissible.</p> <p>Secondary evidence must always be received with caution, and then n ot until every means is shown to be exhausted in the effort to procure that which is superior.</p>