Bussenius

Action to quiet title. The plaintiffs are the owners of the described real property unless their title has been divested by reason of a tax deed dated and executed on the second day of July, 1920, by the tax collector of the county of Los Angeles to Grace P. Warden, who is defendant and appellant herein.

The defense to the action was founded on said deed, of which a copy is annexed to the answer, as exhibit “A” thereof. .The plaintiffs did not, after receiving a copy of the answer, file with the clerk any affidavit denying the genuineness or due execution of the deed. Section 448 of the Code of Civil Procedure provides that when these conditions exist in the record of an action “the genuineness and due execution of such instrument are deemed admitted.” At the trial of the action appellant moved for judgment on the pleadings, and argued that because of the admission of fact above stated, she was entitled to judgment in her favor. Appellant now contends that the court erred in denying said motion.

We think that the court did not err in denying the motion. Assuming that the deed vested title in the grantee at the time of its execution, it might be that the plaintiffs had become the…