HENRY REEVE v. J. M. KENNEDY and D. M. DELMAS, 43 Cal. 643

By the Court, Crockett, J.: It is not averred in the complaint that the defendant Kennedy had any actual notice of the extrinsic facts relied upon, to impeach the judgment on which the execution issued', under which he purchased the property in controversy.. He is, therefore, to be deemed a purchaser without notice of these facts.

The plaintiff assails the judgment, and claims that it is void on two grounds, viz: First, by reason of facts appearing on the face of the record which, it is alleged, show that the Court had no jurisdiction to render the judgment; second, because there was in fact no service of .the summons, and no ajspearance by the defendant; and also, because the judgment was fraudulently obtained. The last point will be first considered. The defendant being a purchaser for value, at a judicial sale, without notice of the extrinsic facts, which are relied upon to impeach the judgment, cannot be affected thereby.

Ho principle is better settled than that a purchaser at a judicial sale, without notice, under proceedings regular on their face, and had in a Court of competent jurisdiction, is not affected by any mere error of the Court, for which the judgment might be reversed on appeal, nor for any secret vice in the judgment, not appearing on the face of the record, and which can be made to appear only by the production of extrinsic evidence.

He is bound at his peril to inquire whether it sufficiently appears on the face of the record that the Court had jurisdiction to render the judgment, and whether there is a valid execution. But nothing more is required of him. Unless the plaintiff in the action be also the purchaser at the sale, the latter will not be affected by any mere error of the Court, even though the judgment be afterwards reversed for such error; nor can his rights be impaired by any secret vice in the proceedings, resulting from fraud or other similar cause, of which he had no notice.

As between the parties to the action, a judgment fraudulently obtained will be set aside and held for naught when the fraud is made to appear. But there would be no security in titles acquired at judicial sales if the rights of a bona fide purchaser, without notice, could be overthrown by subsequent proof that the judgment was obtained by fraud, or that the record, which showed a due service on the defendant, was in fact false.

The repose of titles, and indeed every consideration of public policy, demands that a purchaser at a judicial sale, without notice, under proceedings regular on their face, and by a Court of competent jurisdiction, should be protected as against mere errors of the Court, and against secret vices in the proceedings founded on fraud, accident, or mistake, and which can only be made to appear by the proof of extrinsic facts not appearing on the face of the record. .

Ho prudent person would purchase at a judical sale, if he incurred the hazard of losing his money, in case it afterwards should be made to appear that the judgment was obtained by perjury or other fraudulent practices, or that the record on which he relied, as proving a service on the defendant, was in fact false. These propositions are too familiar to require the citation of authorities in their support, and we have been referred to none which appear to contravene them, unless it be two eases decided by the Supreme Court of Iowa. (Hansby v. Blackman, 20 Iowa, 188; Bryant v.

Williams, 21 Iowa, 329.) The principle settled in those cases is, that a defendant in an action, who was not a resident of the State, and was not served with process by publication or otherwise, and for whom an attorney without authority had entered an appearance, might afterwards, on proof of these facts, recover the property sold under the judgment from a bona fide purchaser, without notice. It is unnecessary, for the purposes of this case, to examine the reasoning on which these decisions are founded.

But if the peculiar facts of those cases should take them out of the general rule to which I have adverted, it would only prove that the rule, in its broadest sense, is hot wholly without an exception, and would not impugn the rule itself. If an unauthorized appearance by an attorney, for a non-resident defendant, who was not served with process, can be after-wards shown to invalidate the title of a bona fide purchaser without notice, at the execution sale, it stands, so far as I am aware, as a solitary exception to the general rule, and the doctrine ought not to be further extended.

I am, therefore, of opinion that it is not competent for the plaintiff to establish by proof dehors the record that there was in fact no service of the summons in this case, or that the judgment was obtained by fraud. This brings us to the question whether the record in the tax suit discloses on its face any want of jurisdiction in the Court to render the judgment under which the property was sold.

The return of the Sheriff’ on the summons shows that it was served by posting a copy on the land, and that Dinnicke, the personal defendant, was not found; but the judgment recites that it appeared to the Court “ summons herein was issued in proper form by the Clerk of this Court, and was served as required by law upon each of said defendants, who have made default.” In Hahn v.

Kelly, 34 Cal. 402, we decided that a recital of this character in the judgment was, in effect, an adjudication by the Court as to the sufficiency of the service, and that it was conclusive on that point, in a collateral attack on the judgment, unless it affirmatively appeared, from some other part of the judgment roll, that the recital was untrue. We further held, that the fact that there appeared in the judgment roll a summons with a return upon it, showing a defective service, or no service at all, was not sufficient to overcome the effect of the recital in the judgment.

But the plaintiff claims that the rule there laid down is applicable only when the judgment is offered in evidence, in a collateral action, and has no application to a direct proceeding to set aside the judgment, as this is claimed to be. But as against a stranger, who purchases at an execution sale without notice, the judgment is no more open to attack than it would be if offered iu evidencé in a collateral action. In each case the validity of the judgment must be tested by the record alone, and not by extrinsic facts.

If it be conceded that the facts alleged in this complaint would be sufficient to vacate the judgment in á direct proceeding for that purpose against the plaintiff in the original action, it by no means follows that the same result would ensue as against a stranger who purchased at the execution sale without notice, Whose rights are not to be affected by proofs dehors the record; and the record in this case shows the due service of process.

But the judgment is also assailed on the ground that it orders the land to be sold, not only for the tax which was specifically assessed upon it and the improvements, but also for the personal property tax assessed to Dinnicke, and which could not become a lien on the land until after the judgment was docketed, which was long after the plaintiff purchased. This was unquestionably an error for which the judgment might have been reversed on appeal; but it does not affect the validity of the judgment and render it wholly void.

It was only an error of the Court in determining the amount of the specific lien on the land, and a judgment is not void because it is for a larger amount than the proofs justify (Murdock v. De Vries, 37 Cal. 527), nor is an execution void because it is for a larger amount than the judgment authorized. I am, therefore, of opinion that the judgment, execution, and the sale thereunder to the defendant Kennedy, are valid.

The plaintiff, however, contends that if all this be conceded, Kennedy acquired no title as against the plaintiff, who purchased the property without either actual or constructive notice of the pendency of the action. The complaint alleges and the demurrer admits that no notice of Us pendens was filed, and that the plaintiff had no actual notice of the pendency of the action. But in this class of cases a notice of Us pendens is unnecessary. By the third

section of the Revenue Act of May 17th, 1861, it is provided that “ every tax levied under the provisions or authority of this Act is hereby made a lien against the property assessed, which lien shall attach on the first Monday in March in each year, and shall not be satisfied or removed until the taxes are all paid, or the property has absolutely vested in a purchaser, under a sale ,for taxes;” and by

section forty-four of the same Act, it is provided that when a judgment is rendered, to enforce a lien for taxes, “such judgments, rendered in the District Court, shall be docketed and become liens upon all the property against which judgment is rendered, from the date of such assessment, and against all other real estate of the person assessed, subject to execution, for the amount of any judgment against him, from the time of such docketing, as in other civil cases.” The effect of these provisions is: First, that the assessment creates a lien upon the real property assessed, which is not extinguished until the tax is paid, or the property is sold to a purchaser, under the proceedings to enforce the tax; second, that when a judgment is rendered for enforcing the payment of the tax, the lien of the judgment, by operation of law, relates back to and takes effect from the date of the assessment.

The precise object of these provisions was to subordinate to the lien of the judgment all rights acquired by purchasers intermediate the assessment and the rendition of the judgment. The assessment of lands, and the lien which it creates, are public matters of record, of which all purchasers are bound to take notice; and when a purchaser buys land which is subject to an existing lien-for taxes, he must see at his peril that the taxes are paid; and if he neglects this duty he takes the hazard of a judgment against the land, the lien of which, by operation of law and by relation, will antedate his purchase.

If the rule were otherwise, it would be necessary in an action to foreclose a tax lien to bring in as defendants all purchasers and incumbrancers subsequent to the assessment and prior to the commencement of the action, and the effect of the judgment in a large number of cases would be practically defeated by secret unrecorded conveyances which were unknown to the District Attorney. It was to obviate the necessity for this, that these provisions were intended,making the judgment lien take effect by relation from the date of the assessment. Ko notice of Us pendens is therefore necessary in this class of actions.

Judgment affirmed.