Elbert, Ltd. v. Barnes

HANSON, J. pro tem.

The only question presented by this appeal is whether the holder of a tax deed based on the foreclosure of a street bond assessment is entitled to parity and equality with the holder of a tax deed which was based on a tax lien levied in a subsequent year. The solution of the problem turns upon the meaning of the language of Bevenue and Taxation Code, section 3900,

1

which places certain tax

[660]

and assessment liens, along with tax deeds issued pursuant thereto, on a parity and equality with certain other liens and tax deeds.

At the time the two tax deeds here involved were issued the rule was well established that all coexisting tax liens on a property or tax deeds based thereon were on a parity and equality with one another by virtue of the code section just mentioned. We are now asked to hold that the section applies not only to coexisting liens or deeds made pursuant thereto, but to all tax liens against a property, regardless of when they became liens on the property.

In the case before us appellant derived his title through a tax deed that was issued to his predecessor in title as a consequence of the nonpayment of an assessment bond lien levied against the vacant lot here involved. The original assessment against the lot became a lien thereon, by virtue of proceedings had under the Improvement Act of 1911, sometime prior to September 22, 1928, at which time appellant’s predecessor acquired a city treasurer’s tax deed thereto. At the time appellant’s predecessor received his title, there were no liens or encumbrances of any kind or character against the lot. There being no existing liens or tax deeds outstanding against it, it is manifest that the rule of parity and equality with respect to future liens or future tax deeds based thereon is not involved and has no application unless the statute provides otherwise.

(Conley

v.

Hawley,

2 Cal.2d 23 [25 P.2d 855, 38 P.2d 408].) While it is true, as appellant argues, that his predecessor could have delayed invoking the procedure that was taken by him and that led to his tax deed, and thereby have placed himself on a parity with the general tax when it was levied the following year he, nevertheless, voluntarily failed to do so. Moreover, it is evident that if appellant’s predecessor had not taken the action he did the then owner of the property would have continued to have a right of redemption and might have redeemed from him and thus left him with no interest whatever in the realty. Accordingly, if appellant’s predecessor desired, as he evidently did, to procure title to the lot as soon as possible rather than to enable the owner to redeem, he exercised a choice that was given to him under the law. As owner of the delinquent street bond he was entitled to hold it unforeclosed and permit interest thereon along with penalties to pile up in his favor and gamble on the possibility of a redemption or, if he chose, procure title, if he valued the property highly, and thus cut off all redemption