Of course, the obligation of the constable on this judgment was extinguished by the release, but in consideration of that release, as already observed, he assigned to the plaintiffs his cause of action on the bond. (Jones vs. Childs, 8 Nev., supra.) Judgment affirmed. We concur: McKinstry, J., Sharpstein, J., Myrick, J., Morrison, C. J., Thornton, J. IN BANK. [Filed January 17, 1881.] No. 7074. WADSWORTH HODGDON, APPELLANT, VS. JANE GRIFFIN ET AL., RESPONDENTS. APPEAL FROM ORDER GRANTING NEW TRIAL-WHAT TRANSCRIPT SHOULD SHOW. Where the transcript on an appeal from an order granting a new trial does not contain the evidence and shows no error in the trial of the cause which justified the Court in setting aside its judgment: Held, that the order granting a new trial should be reversed. Appeal from the District Court of the Sixth Judicial District, Sacramento County. O'Brien & Hodgdon, for appellant. L. S. Taylor, for respondents. By the COURT: This case was heard before Department Two, and an opinion was filed December 20, 1880, reversing the order of the Court below granting a new trial. It now comes before us on petition that the cause be heard in bank; and our attention is called to the fact that an important point was not passed upon by the Department, viz.: That no objection was made in the Court below to the statement on motion for a new trial, and that it is too late to urge the objection on the appeal. It may be conceded that that proposition is correct. We have, however, examined the transcript in the case, and find nothing in it which justified the granting of a new trial. It does not contain the evidence, and shows no error in the District Court which justified that Court in setting aside its judgment. The hearing in bank is therefore denied, and the order appealed from will stand reversed. DEPARTMENT No. 1. [Filed January 17, 1881.] S. C. HUBBELL, APPELLANT, VS. N. C. CAMPBELL, RESPONDENT. 66 CONTRADICTION OF JUDGMENT By Statement on MOTION FOR NEW TRIAL. In an action to quiet title, where the judgment was for defendant, but the statement on motion for new trial declared that the plaintiff introduced on the trial twenty-two deeds showing that he was the owner of the lot in controversy and proved by his own testimony that he was in possession at the commencement of the action," etc.: Held, that if the deeds showed the plaintiff the owner, it was plain that defendant could not be the owner; and it was difficult to see how the judgment could be sustained. TAX DEEDS-FORM PRESCRIBED BY STATUTE MUST BE STRICTLY FOLLOWED. It is entirely competent for the Legislature to prescribe the form of an instrument which, as the result of a proceeding in invitum, such as a tax deed, can alone divest the citizen of his title; and when it has made a particular form necessary, it must be strictly complied with, and it is not for the Courts to inquire whether the required recitals are of material facts or otherwise. TAX DEEDS NOT COMPLYING WITH STATUTORY REQUISITES VOID. Where a statute concerning street improvements provided that the deed, to be issued for property sold for delinquent assessments, should state that the sale was made subject to redemption and should express the true consideration: Held, that a deed which did not state that the property was sold subject to redemption, and which did not express the true consideration, was void. Appeal from the District Court of the Seventeenth Judicial District, Los Angeles County. S. C. Hubbell, for appellant. Hutton & Godfrey and H. F. Lee, for respondent. Ross, J., delivered the opinion of the Court: Action to quiet title. The answer denied the plaintiff's alleged ownership and possession of the property, admitted that the defendant claims an interest therein, and averred that he claims such interest under and by virtue of two certain deeds executed to him by the Tax Collector of Los Angeles city (one being made to correct a mistake in the other in stating the title of the charter of the city), and that by virtue of the deeds he became and is the owner in fee of the premises. After trial the Court below found that at the time of the making of the first deed the plaintiff was the owner and in possession of the property, and continued in such possession up to the time of the commencement of the action. That the deeds were made as alleged by the defendant, and that at the time of the commencement of the action the defendant was the owner in fee simple of the premises. Judgment was entered accordingly. In the statement on motion for a new trial appears the following: "The plaintiff introduced on the trial of this action twenty-two deeds in evidence, showing that he was the owner of the lot in controversy, and proved by his own testimony that he was in possession of the said lot at the time of the commencement of this action, and had been in possession thereof for a long time prior thereto. The plaintiff then rested." Accepting this statement as true, as we must, we do not see how the findings or judgment can be sustained; for if the deeds showed the plaintiff to be the owner of the lot, it is of course plain that the defendant could not be the owner. But we will not place our decision on this ground. On the trial the defendant offered in evidence the two deeds already mentioned, to each of which objections were interposed by the plaintiff. The deeds recite that, whereas the party of the first part as City Tax Collector, etc., "acting under and in pursuance of a warrant to him issued and delivered by the clerk of the Common Council of said city, by and upon the order of said council, for the collection of the sum of one hundred and sixty-eight dollars, assessed and levied upon the property therein and hereinafter described as the property of S. C. Hubbell, for and on account of widening First Street, which said warrant was dated the thirteenth day of May, A. D. 1878. And whereas, said assessment became and was delinquent, and the said party of the first part, as such City Tax Collector, and under and in pursuance of said warrant, levied upon the said real estate in said warrant and hereinafter described, and advertised the same for sale at public auction on the twenty-fifth day of June, A. D. 1878; and whereas, at such sale and at the time last aforesaid, said party of the second part paid therefor the sum of one hundred and sixty-eight dollars, gold coin of the United States, and which said sum so bid was the highest and best sum bid therefor, and the said party of the second part became the purchaser of said real estate at the time and for the price aforesaid. * * * Now, therefore, this indenture witnesseth: That the said party of the first part, for and in consideration of the said sum of one hundred and eighty-seven and 50-100 dollars, gold coin of the United States of America, to him in hand paid by the said party of the second part, etc., has remised, released and forever quit claimed, and by these presents does remise, release and forever quit claim unto the said party of the second part and to his heirs and assigns, as fully as he by virtue of the premises can or may do, and subject to redemption as hereinafter stated, all that certain lot, etc., subject to redemption by any party in interest at any time within one year from the said date of sale, as provided in Article 8 of an Act of the Legislature of the State of California, entitled an Act to revise and to amend the charter of the city of Los Angeles, to define its limits and rights, to enlarge its powers and provide for its more efficient government, approved April 1, 1876, which said revisory Act was approved March 30, 1878." The Court overruled the objections to the deeds and admitted them in evidence; and it was then admitted by the respective parties that the deeds were signed, acknowledged and delivered by the Tax Collector, and that there had been no redemption of the property. Thereupon the defendant rested. By Section 4 of Article VIII of the charter of the city (Statutes 1877-78, p. 662), which was applicable to the assessment in question, it is provided: "If the said assessments be not paid by the several parties liable therefor within thirty days, the clerk of the council shall issue warrants thereon directed to the City Tax Collector, or other officer performing the duties of City Tax Collector, and commanding him to sell the said property liable therefor. Such warrant shall be executed and returned, and all subsequent proceedings shall be taken in the same manner and with like force and effect as provided by Article IX of this Act for the enforcement of liens upon property, for grading or otherwise improving the streets in said city." Sections 12, 13, 14, 15 and 28 of Article IX are as follows: "Sec. 12. Such warrant must require the person to whom it is directed to forthwith levy upon the lot or part thereof upon which the assessment is unpaid, and sell the same in the manner provided by law and to return the proceeds of such sale, less his fees, if any be allowed by the council therefor, to the City Treasurer, and the warrant to the said clerk, with his doings indorsed thereon, together with the receipt of the City Treasurer for the proceeds of such sale, as paid to him; and if at such sale a sufficient sum be not bid to cover the assessments and costs, the city shall become the purchaser. "Sec. 13. Such warrant shall have the force and effect of an execution against real property, and shall be executed in like manner, except as in this article, otherwise specially provided. If, for any cause any warrant be not executed within the time allowed by law, the council may order the issuance of an alias warrant, and as many thereof as may be necessary to enforce the collection of such assessment. "Sec. 14. The person executing such warrants shall immediately make a deed for the property sold to the purchaser, stating therein that the same is made subject to redemption, as provided in this article. Within one year from the date of such sale the owner, or any person in interest, may redeem the same, or any part thereof, upon the terms and conditions provided in the next section. "Sec. 15. Redemption of the whole property is made by the payment of the purchase money; and, in addition, ten per cent., if paid within three (3) months; twenty per cent., if paid within six (6) months; thirty per cent., if paid within nine (9) months; and forty per cent., if paid within twelve (12) months; and the amount of any tax or incumbrance which the purchaser may have paid upon the property. Redemption of a part is made by the payment of that proportion of the purchase money which the part redeemed bears in value to the property sold for the assessment. "Sec. 28. The deed to the purchasers must express the true consideration thereof, which is the amount paid by the purchaser, and the return of the person executing the warrant must specify the amount for which each lot, or part thereof, was sold, and the name of the purchaser." (Statutes 1877-78, pp. 667-8 and 671.) Section 8 of Article XII, containing "miscellaneous provisions," declares: "Real property, when sold for or to satisfy a delinquent assessment or tax, must be sold for United States coin, and not otherwise, and any one applying or seeking to redeem property so sold, as in this Act provided, must pay or offer to pay the sum necessary therefor in such coin, and not otherwise." (Id. p. 677.) And Section 4 of the last mentioned article is as follows: "In any action, suit or proceeding, in any Court, concerning an assessessment of property or levy of taxes authorized by this Act, or the collection of any such, or proceeding consequent thereon, such assessment, levy, consequent proceeding, and all proceedings connected therewith, shall be presumed to be regular and duly done or taken until the contrary is shown; and when any proceeding, matter or thing is by this Act committed, or left to the discretion of the Mayor and Council, or the Council or other authorities of said city, such discretion or judgment, when expressed or |