Kipp v. Luberco, Ltd.

MUSSELL, J.

This is an action, filed on August 31, 1951, to partition real property in San Diego County and was brought pursuant to the provisions of section 752 of the Code of Civil Procedure. Plaintiff claims title to the property by virtue of a commissioner’s deed, dated February 25, 1949, and issued after foreclosure through court of a street improvement bond issued pursuant to the Improvement Act of 1911. Defendant claims title to the property by virtue of a tax deed to the State of California and a deed from the state to defendant.

Defendant appeals and attacks plaintiff’s commissioner’s deed, contending that it did not convey title to plaintiff and that the bond lien on which said deed is based was extinguished by reason of the provisions of section 2911 of the Civil Code. The appeal is from the judgment of the trial court ordering judgment, for partition, determining that plaintiff and defendant are owners of the real property involved as tenants in common, each owning an undivided one-half interest therein ; decreeing that plaintiff holds an equitable lien against the entire property for the amount paid by plaintiff at the commissioner’s sale in said foreclosure; that defendant has an equitable, lien against the property for the amount paid by it for its tax deed and that said two equitable liens are on a parity.

On July 1,1937, the real property in question was deeded to the state for nonpayment of taxes levied for the fiscal year 1931-1932, and on January 21, 1947, the state, pursuant to chapter 7, part 6, division 1, of the Revenue and Taxation Code, conveyed the property by tax deed to the defendant.

Plaintiff was the owner of delinquent Street Improvement Bond No. 101, Series 1463, issued by the city treasurer of the

[658]

city of San Diego pursuant to the Improvement Act of 1911. On December 29, 1944, she commenced an action in the Superior Court of San Diego County to foreclose the bond and on the same date filed a lis pendens in which Lizzie M. Wadha, Joseph Considine, Palmyra M. K. LaVence, Trustee, and various John Does were named as defendants in the action. Apparently, no further steps were taken in the foreclosure action until September 30, 1947, when plaintiff filed an amended complaint adding new parties defendent. The defendant in the instant action was not made a party defendant. Thereafter plaintiff published summons and on January 21, 1948, a decree of foreclosure was obtained and an order of sale was filed. On February 24, 1948, the property was sold by the commissioner in said action to plaintiff herein and on February 25, 1949, the said commissioner executed a deed to the plaintiff.