Philp v. Hobart

WILSON, J.

From a judgment in favor of plaintiff in an action to quiet title to real property defendant Charles E. Hobart, as executor of the estate of George Philp, deceased, appeals.

The parcel which is the subject of this action was held at one time in joint tenancy by plaintiff and decedent, who were husband and wife. On May 5, 1930, plaintiff was granted an interlocutory decree of divorce from George Philp at which time she deeded the lot to him as his separate property.

Prior to July, 1940, the property was foreclosed upon for a delinquent street assessment bond and sold to the Board of Fire Pension Commissioners of the city of Los Angeles. In November, 1940, plaintiff purchased the certificate of sale covering the property from said board for $120. She served George Philp with a 30-day notice of right of redemption which had been given to her by the Treasurer of the city of Los Angeles and in November, 1940, procured a deed of the property to herself from the city treasurer.

George Philp was occupying the property at the time it was deeded to plaintiff and he continued in possession until his death in 1948. Plaintiff paid all taxes and assessments thereon from the time she acquired title. Prior to the foreclosure sale decedent had improved the premises by erecting two garages with an apartment over them. After the title was vested in plaintiff he erected two more garages with two apartments of two rooms each over them. George Philp died after the instant action was instituted and the executor of his estate was substituted as party defendant.

Defendant contends (1) the action is barred by sections 318 and 319 of the Code of Civil Procedure

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because plaintiff was

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not seised or possessed of the property within five years before the commencement of the action; (2) she is barred by laches; (3) she holds title as constructive trustee for the benefit of defendant.

It is undisputed that plaintiff held the legal title to the property from November, 1940, and defendant concedes that under section 321 of the Code of Civil Procedure