Ward v. Chandler-Sherman Corp.

MARKS, J.

This is an action to quiet title to two lots in the Dana Point area of Orange County against the lien of three local improvement assessments for which bonds were issued on October 14, 1929, under the County Improvement Act of 1921 (Stats. 1921, p. 1658; Deering’s Gen. Laws, 1937, Act 3289) authorizing counties to undertake local improvement proceedings under the Improvement Act of 1911 (Stats. 1911, p. 730; Deering’s Gen. Laws, 1937, Act 8199). The judgment quieted plaintiff’s title to the lots subject to the

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prior liens on the bonds which were held to be prior and superior to the title of plaintiff.

The term of the bonds was nine years from and after January 2, 1930, with the last instalment of principal and interest falling due on January 2, 1939. The instalment of principal and interest falling due on January 2,1933, and all subsequent instalments were not paid. The bonds stated that the amounts unpaid would remain a lien on the real property until paid which is in accordance with the provisions of sections 63 and 66 of the Improvement Act of 1911.

Plaintiff, for a valuable consideration, acquired title to the property by a deed dated September 12, 1944, recorded September 13, 1944.

On February 23, 1945, Chandler-Sherman Corporation demanded of H. A. Gardner, as County Treasurer of the county of Orange, that he sell the properties to satisfy the liens. (See Improvement Act of 1911, §§ 67, 68, 69 and 70.) He advertised the properties and sold them on October 4, 1945.

This action to quiet plaintiff’s title to the lots was filed on April 3, 1945. The judgment was rendered on August 13, 1945, and entered on August 17, 1945, so that the amendment to section 2911 of the Civil Code (Stats. 1945, eh. 361) which places a definite limitation on the time in which such sales can be made, was not in effect and can have no bearing on this action other than raising the inference that it may show the opinion of the legislators on the state of the law governing such sales prior to the amendment and the necessity for the amendment. (See, also, Code Civ. Proc., § 330.)

As originally passed, the Improvement Act of 1911 gave the bondholder the sole remedy, in case of default, of having the treasurer sell the property in foreclosure of the lien. (§§67, et seq.) A "separate, distinct and cumulative remedy,” was created by amendment to section 76 of the Improvement Act of 1911, (Stats. 1921, p. 297) whereby the bondholder might bring an action to foreclose the bond. The section was again amended (Stats. 1927, p. 1411) by providing that the foreclosure action could only be filed after six months and not more than four years from the date of the last delinquency. The act was again amended (Stats. 1929, p. 1305) by adding section 76a which reenacted the prior section 76, as amended, with changes not material here.