Hendershott v. Shipman

SHENK, J.

The plaintiffs sued to quiet title to a lot in the city of Los Angeles. The defendants Shipman answered and denied the validity of the plaintiff’s alleged title. They admitted a claim of ownership in themselves. The judgment was that the plaintiffs were not the owners of the lot. The defendants appealed because the judgment also declared that the plaintiffs had a valid and subsisting lien on the property.

The appeal is on the judgment roll which discloses the following:

The plaintiffs commenced proceedings to foreclose a street improvement bond issued August 31, 1928, pursuant to the Improvement Act of 1911. On the termination of the proceedings the City Treasurer of Los Angeles issued to the plaintiffs a certificate of sale dated May 31, 1946. On July 7, 1947, the plaintiffs received a treasurer’s deed to the property which was issued, however, without the filing of the affidavit showing service of notice on the owners as required by sections 6550 et seq. of the Streets and Highways Code.

The plaintiffs’ claim of title was based on the validity of the sale proceedings and the treasurer’s deed. The defendants did not seek to have the title quieted in themselves but rested on their denial of the validity of the plaintiffs’ title and their allegations of ownership. The trial court concluded that the treasurer’s deed of July 7, 1947, was void; that the plaintiffs were the owners of the certificate of sale issued May 31, 1946, which was a valid and subsisting lien upon the real property in the amount due on the bond; that the plaintiffs were not entitled to a judgment quieting title and that the defendants recover their costs. Judgment was entered

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accordingly. The defendants question that portion thereof which declares that the plaintiffs are the owners of the certificate of sale and that the certificate and the amount due thereon constitute a lien against the property.

It is contended by the defendants that the findings of fact and conclusions of law respecting the certificate of sale were not within the issues; that the findings and conclusions as to the treasurer’s deed disposed of all the triable issues; that the defendants did not seek affirmative relief and hence should not be obligated to reimburse the plaintiffs in the amount due on the bond.