Elbert, Ltd. v. Clare

SPENCE, J.

Plaintiff brought this action for partition pursuant to section 752 of the Code of Civil Procedure. It claimed title to the property by treasurer’s deed issued after foreclosure of a street improvement bond authorized under the Improvement Act of 1911 (Stats. 1911, p. 730; 3 Deering's Gen. Laws, 1937, Act 8199.) Defendant claimed title through a tax deed issued after conveyance to the state for

[500]

the nonpayment of taxes. (Rev. & Tax. Code, div. 1, pt. 6, ch. 7.) Judgment for partition was entered and the rights of the parties were decreed thereunder. Our review of the record convinces us that defendant’s challenge of the jurisdiction of the court to render such judgment and the propriety of its terms is without merit.

At the trial plaintiff did not attack the validity of defendant’s tax deed, but the latter did successfully attack the validity of plaintiff’s treasurer’s deed. The trial court concluded that defendant was the owner of the property; that plaintiff’s treasurer's deed and the certificate of sale upon which it was based were both void; that plaintiff was the owner of the street improvement bond in question; that the amount due on plaintiff’s bond ($1,086.40) and the ■amount paid for defendant’s tax deed ($250) constituted liens against the property; and that said liens were on a parity. Accordingly, the court ordered the property to be sold by designated referees and the proceeds derived from the sale to be applied in this order: (a) payment of the referees’ fees and expenses; (b) payment of plaintiff’s and defendant’s costs of action; (e) allowance of a reasonable sum to plaintiff for counsel fees; (d) satisfaction of plaintiff’s and defendant’s respective liens, pro rata; and (e) payment of the balance, if any, to defendant holder of the tax deed.

In

Elbert, Ltd.

v.

Nolan,

32 Cal.2d 610, at page 615 [197 P.2d 537], partition was declared to be the proper statutory remedy where the plaintiff’s lien is on a parity with that on which the owner’s title is based. (Code Civ. Proc., § 752.) There, however, plaintiff’s claim was predicated on the ownership of unpaid street improvement bonds on which no foreclosure proceedings had been taken, while here such proceedings were taken but were ineffective because of the failure to comply with certain statutory requirements. Defendant maintains that in these differing circumstances the only course open to the trial court was to "order a reforeclosure of the bond. (Sts. & Hy. Code, § 6572.) The cited section provides: “If any sale of lands for delinquency in the payment of principal or interest of any bond is held illegal or invalid, or any deed issued to the purchaser at any such sale is held illegal or invalid for any reason whatsoever, the lands described in the bond shall not be released from the lien of the assessment but shall be and remain subject to further proceedings for the enforcement of the assessment, and. the further proceedings