Luberco, Ltd. v. Kipp

[410]

BARNARD, P. J.

This is an action to quiet title to two lots in separate blocks, and to two other lots in another block of a subdivision in San Diego. The plaintiff claims under various tax deeds to and from the state, and the defendants claim to be record owners of the property.

The complaint, in the usual form, was filed on January 28, 1947, and alleged that the plaintiff is the owner in fee and entitled to the possession of these lots. The answer, in addition to a general denial, alleged that the defendants are the owners in fee. There was no allegation with respect to possession by the defendants and no affirmative relief was asked.

The evidence discloses that these lots were sold to the state on June 29, 1929, for delinquent taxes and assessments levied in 1928; that they were deeded to the state August 1, 1934; that they were deeded by the state to the plaintiff on January 7, 1947; and' that these deeds were duly recorded. The defendants produced no evidence with respect to their own title but introduced various tax records in an attempt to show that the deeds to the state were invalid. The court found that the plaintiff was, and is, the owner in fee and entitled to the possession of these lots and that the defendants have no right, title or interest therein. Judgment was accordingly entered and the defendants have appealed.

The appellants contend that the deeds to the state were void because of defective notices of sale, and that the statute of limitations does not apply where the proceedings are thus void or “where the legal owner, not out of possession, is not the moving party.” It is first claimed that the delinquent list for the 1928 tax first published on June 6, 1929, was deficient in that it did not state that delinquent “assessments” affecting the property were included, and that the notice thus published was not in the form prescribed by section 3764 of the Political Code, as it then existed. Section 3764, as amended in 1929, and in effect when this notice was published, did not set forth a required form for this notice but stated, generally, what the published delinquent list should contain. So far as we can see, the notice published contained all of the matters required by the statute and sufficiently complied therewith. The contention that the notice failed to state that delinquent assessments were included is without merit. The heading of the notice stated that it covered not only taxes but five named district assessments “and other special district assessments levied in the year 1928 for the fiscal year 1928-29.” The notice further stated that “Unless