lands. If it be conceded that "Commissioner's Map of Middletown" is equivalent to "Referee's Map," the fact remains that exhibit B answers the description as well as exhibit A. Both maps were used in suits between the same parties for the same purpose, and neither of them was ever filed with the county recorder. They were both marked as exhibits in civil cases pending in the District Court, were filed therein by the clerk thereof, and the clerk did not and could not lawfully make them a record of any other office. If the fact that the clerk and ex officio recorder kept the records of both offices in the same room be material at all, it would tend to show that the map upon which he put a tag, showing it to be among the records of the recorder (exhibit B), was the map referred to by the sheriff in his deed as "Commissioner's Map of Middletown, on file in the office of the recorder of said county of San Diego."

The fact that map B contains a plat of only a portion of the blocks and lots numbered in the deed of the sheriff, and that map A contains what appears to be a full plat of Middletown, might, under some circumstances, be pertinent and forceful, but in view of the other facts here shown cannot avail the respondent. The deed introduced in evidence to support the title of the estate to these particular lots in controversy described the premises as above quoted, while the complaint, findings, and decree herein, in describing them, read: "All according to the map filed in the partition of said Middletown property in the case of Baldwin v. Couts. Decree recorded October 24, 1874, in book 4 of miscellaneous records of said county." The record shows that the description of the land intended to be conveyed is not complete and certain without reference to a map. No one could find it without the map. The sheriff himself in making the levy found the property only by using the map and making a survey. Against the objection of the defendant he was allowed to testify: "We took a

traced copy of the map before starting out with the surveyor. This is the map [exhibit A] I referred to in the deed as the Commissioner's Map.' This is the map we used." Without this testimony, the court could not have found that the property conveyed or intended to be conveyed by the sheriff was shown by "the map filed in the partition of the said Middletown property in the case of Baldwin v. Couts," etc. That this testimony was inadmissible, we think there can be no doubt. (Mason v. White, 11 Barb. 175.)

The contention of the respondent that, as Nash was a party to the proceedings in which the execution was issued, he is presumed to have known all that was done by the sheriff, and if there was any irregularity detrimental to his interests, he should have applied. to the court to set aside the sale, and having failed to do so, the purchaser took all the title Nash held, cannot be maintained.

Of course, in judicial sales, where the court acts directly upon the property sold, the deed can be made to conform to the true description of the thing sold, and the rules applicable to sales between man and man to a great extent apply; but not so in case of execution sales. Freeman on Executions, in section 281, says: "The object of the advertisement is to give notoriety to the proposed sale, so that all persons may understand what it is that is to be sold. No one will bid unless he can know what he is bidding for. The rights of the defendant must necessarily be sacrificed, unless the thing to be sold is made certain. People may refuse to bid, or after successful bidding may claim more than the officer intended. to sell. So the deed ought to be free from ambiguity." Freeman on Executions, section 330: "Hence a descrip

tion from which the lands intended to be transferred can be located is indispensable to the validity of the deed."

Our conclusions upon this branch of the case, therefore,

are, 1. That the court erred in admitting the testimony of the sheriff; and 2. That without this testimony the evidence does not support the allegations of the complaint, or the findings of the court relating to the Middletown lots.

It is, admitted that there is no uncertainty in the sheriff's deed as to the east one half of pueblo lots 1126 and 1127, and the only question in relation to those lots is as to the validity of the tax deeds under which defendant claims title thereto. In June, 1873, Nash, for a valuable consideration, conveyed to Phillips certain lots and blocks of land, the same being a portion of the east one half of pueblo lot No. 1126, and Phillips reconveyed the same to Nash by deed dated December 13, 1883. As there was no uncertainty in the sheriff's deed so far as these two pueblo lots were concerned, the defendant's interest in every portion thereof not previously conveyed to Phillips passed to Cadwalader by virtue of the sheriff's levy, sale, and deed under execution, and defendant's title thereto, if he has any, is derived from the tax deed.

It appears from the findings of the court that these pueblo lots are large lots containing several acres, and that they are subdivided into a large number of smaller lots designated upon the map by numbers. The decree adjudges Nash to be the owner of over 150 subdivisions, being a portion of the east one half of one pueblo lot alone, giving the number of each block and lot. The map showing these subdivisions was made by the city engineer in 1870.

The assessor did not assess the lots, nor even the block separately, but assessed the east one half of lot 1126 as one undivided parcel. This, we think, could not, under the law, be done. "The assessor must prepare an assessment-book, . . . in which must be listed all property within the county, and in which must be specified in separate columns under the appropriate head: . . . .

LXXIII. CAL.-4

3. City and town lots, naming the city or town and the number of the lot and block, according to the system of numbering in such city or town, and improvements thereon; 4. All personal property, showing the number, kind, amount, quality; but a failure to enumerate in detail such personal property does not invalidate the assessment." (Pol. Code, sec. 3650.) Under the revenue act of 1861, it was held that where one man owned and returned a whole block or half block, the assessor might list and value it as a whole. (People v. Morse, 43 Cal. 541; People v. Culverwell, 44 Cal. 620.) Since the decisions in these cases, the duty of the assessor has been made more specific and imperative, as will be seen by a comparison of section 20 of the revenue act of 1861 with the provisions of section 3650 of the Political Code. Of course, where the owner himself returns the property as a whole, he cannot be heard to complain that it has been improperly listed in that manner; but where, as in this case, no return was made by the owner, and there is nothing to show that the owners of the property refused to make a return to the assessor, we are bound to say that the assessment is void, or to hold that the imperative language of section 3650 is simply directory, unimportant, and that the assessor may regard it or disregard it at will. We think that the rule prescribed is based upon reason, and should be followed. Several parties may own different portions of a pueblo lot, divided into city blocks containing several hundred wellknown lots. An owner of one lot, who is a non-resident, would be required, if his lot be assessed as this lot was, to pay the tax on the whole property to save his own from tax sale, and this without any fault of his own. There is no way of ascertaining what proportion of the whole tax any particular lot owner should pay, and of course the tax-collector will accept nothing less than the full amount of the tax.

That the assessor is bound to assess in subdivisions

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is apparent also from other provisions of the code, which relate to assessment and sale. Thus he is required to exact from each person, under oath, a statement showing separately, — " 5. An exact description of all lands in parcels and subdivisions." When the assessor has not received from the owner of a tract of land the statement required by section 3629, or when such statement does not sufficiently describe a tract of land to enable the assessor to assess the same as required by law, . . . . he shall cite such owners to appear," etc. (Sec. 3634.) The form of the assessmentbook is prescribed, in which one column is for "real estate other than city and town lots," and half-columns for range E. or W.," "township N. or S." "section"; "subdivision of section." Also a column for "city or town lots," with half-columns beneath for "block," "lot," and "fraction." fraction." (Sec. 3651.) The supervisors must provide for the assessor maps of cities and villages. (Secs. 3658, 3659.) The tax-collector must commence the sale at the head of the list, and continue alphabetically, or in the numerical order of lots and blocks, until completed (sec. 3771), and the owner has the right to designate what particular parcel he wishes sold, if less than the whole. (Sec. 3773.)

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We think, therefore, that the court below was right in its conclusion that the assessment, sale, and deed affecting the pueblo was void.

Appellant requests that the court below be directed to enter judgment in his favor for the Middletown lots, but this request cannot be granted. The evidence on another trial may show a state of facts entirely different from those shown in this record.

Judgment and order reversed, and cause remanded for a new trial.

MCKINSTRY, J., and TEMPLE, J., concurred.