Elbert, Ltd. v. City of Long Beach

California Court of Appeal Dec 28, 1951 No. Civ. 18307Published

Before: Vallee

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Holding. The court held that the lien of a street improvement bond issued under the Improvement Act of 1911 was extinguished by the statute of limitations set forth in Civil Code section 2911, regardless of whether the state held title to the property during that period. Consequently, the plaintiff's foreclosure action was time-barred.

Issues

Whether the statute of limitations in Civil Code section 2911 applies to a street improvement bond lien when the property was held by the state.
Whether the commencement of a foreclosure suit is tolled while the state holds title to the property subject to the lien.

Disposition. reversed

Quotations verified verbatim against the opinion

“The section makes no distinction between a lien when there is parity and when there is not. It applies to all liens to secure payment of a public improvement assessment.”

“Since plaintiff’s right to enforce the lien of the bond sued on expired on January 1, 1947, it follows that the action was not commenced within the time prescribed by Civil Code section 2911.”

VALLÉE, J.

Appeal by defendant from a judgment for plaintiff entered when defendant failed to answer following the overruling of its demurrer to the complaint in a suit to foreclose the lien of a street improvement bond.

Plaintiff owns a street improvement bond issued by the city treasurer of defendant on December 18, 1923, under the Improvement Act of 1911. (Stats. 1911, p. 730; now Sts. & Hy. Code, §§ 5000-6794.) The bond was issued in the amount of $60.63, payable in nine annual installments commencing January 2, 1924, with semi-annual interest. The bond was in default in the sum of $60.63 principal, together with interest and penalties from January 2, 1924.

[464]

The property which became subject to the lien of the bond was delinquent for state and county taxes for the year 1909. It was sold to the state in 1910 and was deeded to the state in 1915. On May 21, 1948, the state sold the property to defendant. The complaint alleged that since May 21, 1948, defendant has been, and is now, the owner of the property, and that its interest is subordinate to the lien of the bond. It was not alleged that defendant was not a bona fide purchaser for value. The judgment found that all of the allegations of the complaint were true and decreed that the property be sold and that after the time allowed by law for redemption has expired, defendant be barred of all right in the property.

Defendant contends the lien of the bond was extinguished by virtue of the provisions of section 2911 of the Civil Code and, therefore, plaintiff did not exercise his right to foreclose within the time allowed by law.

Plaintiff argues that because the state was the owner of the property from 1915 to May 21, 1948, and the bond was issued in 1923, the lien of the bond was superior to the state’s title and, therefore, would not come within the parity rule; that the owner of the property is an indispensable party to a proceeding to foreclose the bond; due to the fact that the state could not be sued in such proceeding, the commencement of the suit to foreclose the lien of the bond was tolled during the period the property was owned by the state; that, therefore, the suit was commenced in time. Plaintiff also claims that if section 2911 óf the Civil Code is so construed as to prevent him from foreclosing the lien of his bond, it is unconstitutional.

Elbert, Ltd. v. City of Long Beach

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