nantor under whom he derives title, and request him to defend the title, and the covenantor is then bound by the judgment whether he appears or not, in the absence of a fraudulent failure of the covenantee to make a proper defense. [Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 221-223; Dec. Dig. § 121.*] 5. JUDGMENT (§ 682*) - CONCLUSIVENESS GRANTORS. Where two of three tenants in common brought a suit against a grantee of a third person holding under covenants of warranty, and made the cotenant a party defendant, and the grantee served notices on the third person and his grantor, demanding them to defend, and the third person appeared and participated in the defense, but his grantor took no action, a judgment that plaintiffs in the action had a perfect title, and that defendants had no interest therein, was conclusive on the grantor as to the whole estate, and he was liable for breach of warranty affecting the whole estate. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*] 6. TENANCY IN COMMON (§ 55*)-RECOVERY OF POSSESSION BY ONE TENANT-EFFECT. One tenant in common may recover possession of the whole estate against all persons except his cotenants, and his recovery inures to the benefit of his cotenants. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.*] Department 1. Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge. Action by Levi McCormick against Annora Marcy. From a judgment for plaintiff, defendant appeals. Affirmed. McNutt & Hannon, of Los Angeles, for appellant. George E. Overmyer, of Los Angeles, for respondent. SHAW, J. The action is to recover damages arising from a breach of covenants in a conveyance of land. Judgment below was given for the plaintiff, defendant's motion for a new trial was denied, and she has appealed from the judgment and order. On March 8, 1899, the defendant executed a deed purporting to convey to plaintiff a section of land in Kansas for the price of $3,500. The covenant in the deed, which it is herein claimed was broken, is in the following clause thereof: "And the said Annora Marcy does hereby covenant and agree that at the delivery hereof Annora Marcy is the lawful owner of the premises above granted, and seised of a good and undefeasible estate of inheritance therein free and clear of all incumbrances, and that Annora Marcy will warrant and defend the same in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, against all persons lawfully claiming the same." [1] This clause includes two distinct covenants, namely, the covenant of title or seisin, and the covenant to warrant and defend the quiet and peaceable possession. The case was tried upon an agreed statement of facts It ap which was embodied in the findings. pears that Annora Marcy never had any title to the land. Her immediate grantor had previously conveyed it to John Eck, Maude Eck Maxwell, and Eva Bryan, whose deed was duly recorded prior to the deed to Marcy. The covenant of seisin was therefore broken at the time it was made. Lawrence v. Montgomery, 37 Cal. 188; Gross v. Kierski, 41 Cal. 115. An action could have been maintained against the defendant for this breach immediately after the execution of the deed. The deed was executed in the state of Indiana. Annora Marcy was not in California until the year 1900. Since that time she has not been out of this state. Such action would have been barred by the statute of limitations of this state after the year 1902. Code Civ. Proc. §§ 339, 351. The plaintiff has recognized this from the beginning, and accordingly this action is avowedly based solely on the covenant to warrant and defend the quiet and peaceable possession. The part of the defendant's. brief which is devoted to a discussion of the dif ferent rules of law respectively applicable to these distinct covenants need not be further noticed. [2] There is no breach of the covenant for quiet and peaceable possession of land until there has been an eviction by the true owner, or an assertion by him of his paramount right in such a manner that the holder through the covenantor is compelled to yield possession or buy the outstanding superior title. McGary v. Hastings, 39 Cal. 366, 2 Am. Rep. 456; Playter v. Cunningham, 21 Cal. 233; McAlester v. Landers, 70 Cal. 82, 11 Pac. 505; Levitzsky v. Canning, 33 Cal. 306. As no cause of action accrues until a breach occurs, it follows that the statute of limitations upon an action for breach of this covenant begins to run only from the time of such breach. In this case the eviction did not take place until February 21, 1910. This action was begun on July 15, 1910. It is not claimed on this appeal that the action is barred as an action upon the covenant to warrant and defend the quiet and peaceable possession. The main contention is that the damages are excessive. [3] The plaintiff paid to the defendant the sum of $3,500, as the purchase price of the land. The eviction was upon a judgment in favor of the true owners in an action in the district court of Gove county, state of Kansas, against one Carleton, grantee of the land from McCormick by a deed containing a like covenant. McCormick was vouched to warranty therein by Carleton, and thereupon appeared and defended said action. He paid $500 for attorney's fees and costs, in that defense. Carleton was ousted from possession, and thereafter, and before this suit was begun, McCormick, on Carleton's demand, satisfied his own covenant to Carleton, and was discharged from further liability thereon. I have been involved, and considered from The court in the case at bar gave judgment time to time, in cases before the courts. The against Marcy for $4,000, with interest from conclusion of Livingstone, J., concurring the date of the eviction. with Kent, J., in Staats v. Ten Eyck, 3 Caines (N. Y.) 111, 2 Am. Dec. 254, a case where the land had greatly increased in value, is that: "However inadequate a return of the purchase money must be in many cases, it is the safest measure that can be followed as a general rule." This is the general effect of all the cases. The Civil Code provides that the measure of damages for a breach of the covenant of warranty, or of quiet enjoyment, in a grant of an estate in real property, is: (1) The price paid to the grantor, or, if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore, at the time of the grant, to the value of the whole property; (2) interest for the time during which the grantee derived no benefit from the property, in this case the time since the eviction, not exceeding five years; and (3) any expenses properly incurred by the covenantee in defending his possession. Civ. Code, § 3304. This was also the rule of damages in this state before the enactment of the Code. McGary v. Hastings, supra, 39 Cal. 369. Under this rule the damages allowed were not excessive. The defendant claims that, under the peculiar circumstances of this case the rule of damages above stated does not apply. It appears that McCormick sold the land to Carleton for $2,000, and that after the eviction he satisfied Carleton's demand for damages for breach of his own warranty to Carleton by the payment of $2,000. Upon these facts it is insisted that the damages here allowed are $1,500 too much. It seems to be a sufficient answer to this proposition to say that the Code, as we have seen, has declared that the measure of damages for a full breach of such covenant "in a grant of an estate in real property" is "the price paid to the grantor." If the proposition advanced is correct, the measure of such damages would not be the price paid to the grantor; it would be the sum for which the grantee afterward sold the land. The claim is contrary to the law as laid down in the Code, and which is therefore binding on the courts of this state. The measure of damages being thus established by the Code, a discussion of the reasons on which it is founded is unnecessary. We may say, however, that the code measure was the one generally, if not universally, prevailing prior to its enactment. McGary v. Hastings, supra. If any other standard than that arising from the original transaction were taken, many difficulties and distinctions would arise. The land might afterward rise or decline in value, or valuable permanent improvements might be affixed thereto. The grantee might sell it with or without covenants, or at a price higher or lower than he paid, or greater or less than its actual value at the time, or he might dispose of it by gift. Granting with covenants, he might settle with the second or subsequent grantee for less than the price at the second sale. These contingencies would present the case in different aspects, and no Defendant suggests that if Carleton had sued Marcy directly on her covenant to McCormick, as he might have done, since this covenant runs with the land, his recovery would have been limited to the $2,000 he had paid for the land, with interest and expenses, and from this she argues that the anomaly of allowing McCormick to recover more should not be permitted. The question of the measure of damages in an action by Carleton against Marcy is not here involved, and we cannot determine it. Even if it be as suggested, it does not appear to us that the conclusion defendant seeks would necessarily follow, nor that it would justify or require a disregard of the express provision of the Code. It is further claimed that the eviction was not complete; that it embraced only a twothirds interest in the land; that the breach of the covenant was only partial; and that only two-thirds of the purchase money should be allowed as damages. We think this claim is not tenable. According to the facts agreed upon and found, the paramount title was vested in Eva Bryan, John Eck, and Maude Eck Maxwell at the time of the sale to McCormick, and until the suit thereon, above mentioned, against Carleton was begun. The plaintiffs in that suit were John Eck and Maude Eck Maxwell. Eva Bryan was named as defendant, and it was alleged that she claimed a one-third interest, but had no right thereto. She was not served with process and did not appear in the action. The judgment therein rendered was not valid as to her. From this it is argued that Carleton might have remained in possession of the one-third interest as tenant in common, and that the ouster was only of the two-thirds, and that the damages should be reduced accordingly. [4] Where a covenantee in such a deed, or one who derives title to the land from him, is sued for possession by a person claiming a paramount title, such defendant may give notice of the suit to any previous covenantor under whom he derives title, and request him to come in and defend the title he war ranted. This proceeding is called a "voucher to warranty." The covenantor so vouched in may then appear in the action and defend the same. And whether he appears or not, he is bound by the judgment rendered in the action. It is conclusive upon the person thus vouched in, with respect to the su plaintiff in the action. 2 Suth. on Dam. | McCormick, who responded thereto and who 614, 615; Rawle on Covenants for Title, §§ has settled with Carleton, as it would have 117, 119. been to Carleton himself. In view of the law, as above stated, whereby one tenant in common may recover the whole estate against a stranger, there is no force in the argument that the attorney's fees in the Kansas case should have been disallowed because of the neglect of Carleton and McCormick to set up the title of Eva Bryan to a one-third interest as a defense in that case. Such defense would have availed them nothing if they had attempted to present it. No other objections to this allowance are urged by appellant. The judgment and order are affirmed. We concur: ANGELLOTTI, J.; SLOSS, J. (165 Cal. 356) [5, 6] When Carleton was sued by the holders of the paramount title, he served written notices upon McCormick and Annora Marcy, respectively, as warrantors of title and quiet possession, demanding of them, respectively, that they come in and defend the same in said action, and delivered to each a copy of the complaint filed therein. McCormick, as before stated, responded to the notice, appeared to the action, and participated in the defense. Annora Marcy took no action in the case. The judgment was that the plaintiffs in the action, namely John Eck and Maude Eck Maxwell, had a perfect title to the land, that the defendants had no estate or interest therein, that they be forever barred from asserting any interest therein adverse to said plaintiffs, and that said plaintiffs recover the possession thereof from Car- HALL v. PARK BANK OF LOS ANGELES leton. This proceeding makes the judgment conclusive upon Annora Marcy as to the whole estate. No evidence to the contrary need have been received, and the finding of the facts showing title to one-third in Eva Bryan was irrelevant. It cannot affect the rights of the parties who are conclusively bound by the judgment. Moreover it was, in effect, a judgment in favor of Eva Bryan against Carleton. One tenant in common may recover possession of the whole estate against all persons except his cotenants, and his recovery inures to the benefit of his cotenants. Newman v. Bank of California, 80 Cal. 372, 22 Pac. 261, 5 L. R. A. 467, 13 Am. St. Rep. 169; Touchard v. Crow, 20 Cal. 162, 81 Am. Dec. 108; Hart v. Robertson, 21 Cal. 348; Mahoney v. Van Winkle, 21 Cal. 583; Treat v. Reilly, 35 Cal. 129; Spotts v. Hanley, 85 Cal. 170, 24 Pac. 738. The eviction by paramount title was complete. Carleton could derive no advantage from the right of Eva Bryan as tenant in common. He was not in privity with her. There is therefore no foundation for the claim that the damages were excessive. et al. (L. A. 3,138.) (Supreme Court of California. May 5, 1913.) 1. TAXATION (§ 667*)-TAX SALES-AMOUNT. A sale to the state for taxes for an amount in excess by 50 cents of all amounts then due for taxes, penalties, and charges of every kind, was void, so that a subsequent attempted sale by the state would not convey any title. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1350; Dec. Dig. § 667.*] 2. TAXATION (8 549*)-TAX SALES-CHARGES. Pol. Code, § 3770, requiring the tax collector to collect 50 cents on each lot or tract of land separately assessed and on each assessment of personal property in addition to the taxes, penalties, etc., which amount shall be paid to the county, does not authorize a separate 50-cent charge for improvements in case of a single assessment on the land with the improvements thereon, with the values of the land and improvements stated in separate columns. [Ed. Note. For other cases, see Taxation, Counties, Cent. Dig. § 107.] Cent. Dig. §§ 1043-1050; Dec. Dig. § 549;* 3. TAXATION (§ 549*)-TAX SALES-CHARGES -"ASSESSMENT." Pol. Code, § 3770, requires the tax collec tor to collect, in addition to the taxes due and penalties, 50 cents on each lot or tract of land separately assessed and on each assessment of personalty, and section 3860 provides, under The defendant's argument appears to be the heading of "poll taxes" in another chapter, based in part upon the theory that there that if any person assessed for a property tax were good defenses which might have been has not paid his poll tax, it, with 33% per cent. in addition thereto, constitutes a lien upon the made in the action against Carleton in the property assessed and must be collected in the Kansas court, and that these defenses are same manner as delinquent taxes. Held, that in some way available here to impeach the a charge of 50 cents cannot be allowed on account of a delinquent poll tax; the statement judgment of ouster in that case. On this as to the poll tax contained on a delinquent point it is sufficient to say that this would roll not being an "assessment" within section be a collateral attack on that judgment, and 3770, merely being a matter required to be that as Annora Marcy was regularly vouch-shown on the delinquent roll by section 3764. ed to warranty and failed to respond, she cannot now be heard to urge defenses which she might have there made. There is no suggestion that there was any fraudulent failure or refusal by Carleton or McCormick to make such defenses. We can see no reason to hold that the estoppel against Annora Marcy, from the voucher to warranty proceeding from Carleton, is not as available to Cent. Dig. §§ 1043-1050; Dec. Dig. § 549;* [Ed. Note. For other cases, see Taxation, Counties, Cent. Dig. § 107. For other definitions, see Words and Phrases, vol. 1, pp. 549-555; vol. 8, pp. 7783, 7784.] 4. TAXATION (§ 667*)-TAX SALES-CHARGES, shown for every charge made in tax proceedThere must be clear statutory authority ings. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1350; Dec. Dig. § 667.*] Department 1. Appeal from Superior liable for state poll tax indicated thus-1" Court, Los Angeles County; N. P. Conrey, was written "1." This in itself indicated a Judge. charge for poll tax of $4, being the $2 poll tax, the penalty of $1 accruing on the first Monday of August, if the tax is not paid to the assessor prior thereto, and the addition Action by J. W. Hall against the Park Bank of Los Angeles and others. From a judgment for defendants and an order denying a motion for new trial, plaintiff appeals. Af- al penalty of 33% per cent. on the $3, or $1, firmed. accruing on the first Monday of the following ap-roll and such roll is returned to the tax colJanuary, when it is placed on the delinquent lector for collection, if such tax has not been paid to the assessor. George H. Moore, of Los Angeles, for pellant. Carter, Kirby & Henderson, of Los Angeles, for respondents. [2] The right to collect an advertising charge exists solely by reason of the provisions of section 3770 of the Political Code, a section contained in the chapter entitled "Collection of Property Taxes." The section addition to the taxes due on the delinquent provides: "The tax collector must collect, in ANGELLOTTI, J. This is an appeal by plaintiff from a judgment against him and an order denying his motion for a new trial, in an action to quiet his alleged title to a parcel of land in the city of Los Angeles. Plaintiff's claim of title is based wholly on certain proceedings for the collection of state and county taxes for the year 1903, culminat-list, together with the penalties for delining in the purchase by him of the land from quency, 50 cents on each lot, piecę, or tract the state at a sale had on June 7, 1910, and of land separately assessed, and on each asa deed of the state of the same date, purport-paid to the county and be placed to the credit sessment of personal property, which shall be ing to convey the property in pursuance of such sale. It is not claimed that the judgment is in any way erroneous if such proceedings did not result in vesting title to the property in him. The tax proceedings are alleged by defendants to be invalid for many reasons, only one of which will it be necessary to notice. [1] It is claimed by defendants that the sale of this property to the state, which was made on July 1, 1904, was for an amount in excess by at least 50 cents of all amounts then due for taxes, penalties, costs, and charges of every description. It is settled by our decisions that, if such is the fact, such attempted sale to the state was void, with the result that the subsequently attempted sale by the state, based wholly on said sale of July 1, 1904, is a nullity, and the deed to plaintiff ineffectual to convey any title. See Rimmer v. Hotchkiss, 162 Cal. 390, 123 Pac. 256. We see no good answer to defendants' claim in this regard. section does not authorize a separate 50-cent of the salary fund." It is settled that this charge for improvements on land where the assessment is as it was in this case, i, e., a single assessment of the land with the improvements thereon, with the respective values of the land and improvements stated in separate columns, and that the limit of the charge in such a case is 50 cents for both land and improvements thereon. Rimmer v. Hotchkiss, supra. An additional charge of 50 cents was authorized by the section on account of the assessment of personal property. The advertising charge was therefore proper to the extent of $1. Clearly the additional' charge of 50 cents cannot be held good unless, as claimed by plaintiff, it was allowable on account of the delinquent poll tax, which, by reason of its previous nonpayment and its being shown on the delinquent roll, was a lien upon the property assessed to the delinquent. The amount for which the property was [3] Section 3860 of the Political Code, consold to the state was, as shown by the deed tained in another chapter headed "Poll taxto the state, $19.94. The delinquent assess-es," which is claimed by plaintiff to authorment roll was introduced in evidence on the ize such a charge, provides: "If any person, trial, and this showed the taxes, penalties, assessed for a property tax, has not paid and charges alleged to be due, making in the to the assessor the poll tax due from him, or aggregate $19.94. The taxes were $12.78, the for which he is liable, it, with thirty-three penalties for delinquency thereon $1.66, and one-third per cent. in addition thereto, amount due on one delinquent poll tax $4, constitutes a lien upon the property assessed and $1.50 for advertising fee. The question to such person, * ** and must be collect is as to the correctness of the advertising ed in the same manner and at the same time charge. as delinquent taxes are collected." We see The assessment was one to Wm. C. Robert-nothing in this section to warrant us in son of a designated lot of land, and certain holding that an additional advertising charge personal property. In the column headed of 50 cents on account thereof is authorized. "value of city and town lots" was written [4] As is substantially said in defendants' "$250," in the column headed "value of im- brief, there must be clear authority for every provements thereon" was written "$750," and charge made in tax proceedings. The statein the column headed "value of all personal ment as to poll tax contained on the delinproperty," etc., was written "$65," making a quent roll is not an "assessment" of propertotal value for taxation, after deductions, of ty at all, but is simply a statement as to a taxes and penalties, are to be enforced against the property assessed. It is a matter required to be shown on the delinquent roll, with delinquent state, road, and hospital tax, by section 3764 of the Political Code, a section contained in the same chapter with section 3770, in order that all taxes constituting liens on the property assessed may be collected or enforced against such property. Section 3770 of the Political Code limits the advertising charge to assessments of property, 50 cents on each lot, piece, or tract of land separately assessed, and 50 cents on each assessment of personal property, entirely regardless of the various taxes constituting a lien on the property assessed and enforceable against the same in a single proceeding. The only effect of section 3860 of the Political Code in this connection is to make the delinquent poll tax and the penalty thereon, in all $4, a lien on the property assessed to the delinquent, and to require the collection thereof with any other taxes and charges due from such person, by sale to the state of the property on which it is a lien if necessary. In view of what we have said, the charge of more than $1 for advertising was unauthorized. The sale to the state was therefore for an amount in excess of all amounts due. It follows, under our decisions, that the plaintiff showed no title in himself. ity to allow costs were duly and regularly observed. Cent. Dig. 88 944-947; Dec. Dig. § 504.*] [Ed. Note.-For other cases, see Judgment, 4. JUDGMENT (§ 504*)-COLLATERAL ATTACK— ERRORS AND IRREGULARITIES. A judgment for an amount in excess of that declared upon in the complaint did not render it void or open to collateral attack; that befrom the judgment. ing a mere error correctible only on an appeal [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 944-947; Dec. Dig. § 504.*] 5. EXECUTION (§§ 83, 275*)-COLLATERAL AT TACK. An execution for a greater amount than the title acquired at the sheriff's sale was not that awarded by the judgment was not void, and thereby affected; that being an amendable defect, and executions which might be amended not being void, even though the judgment was by default, since, notwithstanding his default, it was the duty of the defendant to have errors corrected by an appropriate proceeding. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 16, 148, 179, 345, 791-796; Dec. Dig. 88 83, 275.*] 6. EXECUTION (§ 331*)-RETURN-WHO MAY MAKE UNDER SHERIFF”—“DEPUTY SHERIFF." A sheriff's return of execution and certificate of sale were not void although they purported to have been executed by the sheriff through an under sheriff, even conceding that there was no officer technically designated by statute as an under sheriff; it being a matter of common knowledge that one of the sheriff's deputies is always designated by the sheriff as an "under sheriff," meaning his chief deputy execute all the ordinary duties of the office of sheriff (citing 3 Words and Phrases, p. 2009). The judgment and order denying a new with authority by virtue of his appointment to trial are affirmed.. We concur: SHAW, J.; SLOSS, J. (21 Cal. App. 405) SHIRRAN v. DALLAS et al. (DALLAS, Intervener). (Civ. 1,078.) (District Court of Appeal, Third District, California. March 7, 1913. Rehearing Denied by Supreme Court May 3, 1913.) [Ed. Note.-For other cases, see Execution, Cent. Dig. § 1000; Dec. Dig. § 331.*] 7. EVIDENCE (8 44*)-JUDICIAL NOTICE-OFFICIAL PROCEEDINGS. The courts will take notice that in this state, almost from the beginning of the state government, one of the deputies in the office of the sheriff of each county has always been designated by the sheriff, if not by the law, as an under sheriff, generally meaning the chief deputy. [Ed. Note.-For other cases, see Evidence, 1. JUDGMENT (§ 497*)-COLLATERAL ATTACK-Cent. Dig. § 66; Dec. Dig. § 44;* Appeal and VALIDITY OF JUDGMENT-HOW DETERMINED. Error, Cent. Dig. § 2959.] In a collateral attack upon a judgment, the question whether the judgment is void must 8. EXECUTION (§ 345*)-RETURN-OPERATION be determined by an inspection of the judgment AND EFFECT. roll. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. § 497.*] 2. JUDGMENT (§ 491*)-COLLATERAL ATTACKPROCESS FORM AND REQUISITES OF RE TURN. The failure of the return of summons to show service of a copy of the complaint therewith is a mere irregularity which does not render a default judgment void or subject to collateral attack. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 929; Dec. Dig. § 491.*] The failure of a sheriff's return of execu tion and certificate of sale to show that a levy was made according to law did not affect the title of a purchaser at execution sale, since his title was not created by the return but by the sale. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 1044, 1045; Dec. Dig. § 345.*] 9. JUDGMENT (§ 131*)-DEFAULT JUDGMENTFILING. Under Code Civ. Proc. § 585, subd. 1, providing that in an action on a contract for the recovery of money or damages only, if no answer is filed within the time specified in the sum 3. JUDGMENT (§ 504*)-COLLATERAL ATTACK-mons, the clerk, upon application of the plainERRORS AND IRREGULARITIES. The failure of a judgment roll to show that a cost bill was legally served and filed did not render the judgment void or open to collateral attack; the cost bill being no part of the judgment roll, and it being conclusively presumed in support of the judgment that all the requirements necessary to give the court author tiff, must enter the defendant's default and immediately thereafter enter judgment for the amount demanded in the complaint, including costs, and section 670 providing that immediately after entering the judgment the clerk must attach together and file the papers constituting the judgment roll, which, where the complaint is not answered, consists of the summons with |