Hennessy v. Hall
Before: Shaw
Synopsis
Action to Quiet Titus to City Lots—Defense—Title Under Street Widening Assessment—Prima Facie Evidence—Rebuttal—Insufficient Affidavit.—In an action to quiet title to city lots, in which the defense is of a title under an assessment for a street widening under the street opening act of 1903, the deed under which is prima fame evidence of title, the plaintiff was entitled to rebut the same by producing the affidavit filed with the board of public works, to show that it was insufficient to warrant a. deed for failure of the same to show a compliance with all the provisions of section 28 of said act, without which compliance it is provided that no deed shall be made thereunder.
Id.—Affidavit Required to Show Due Diligence to Find the Owner of Property Assessed.—To warrant a deed to the purchaser under the street widening assessment, and to foreclose the owner’s right of redemption upon constructive service by posting a notice upon unoccupied property, an affidavit must be filed showing, not merely stating, that due diligence was used to find the owner.
Id.—Nature of “Showing of Due Diligence.”—Whether or not there has been an exercise of due diligence must necessarily depend upon the doing of certain acts which, if performed, constitute “due diligence,” and evidence of the fact of performance constitutes the “showing.” There is an obvious and material distinction between showing a fact and stating it. Stating that “due diligence was used” merely alleges the fact, while “showing it” is to state the evidentiary facts which make it manifest or prove it.
Id.—Search to Find Owner Insufficient.—An ineffective search for a former owner, who appears from the record to have parted with the ownership of the lots to the plaintiff nearly four years before the posting of the notice on the property shows no diligence to find the real owner of the property. Merely making inquiries of persons near the property for such former owner was insufficient.
Id.—Invalid Title of Defendant to Lots—Lien of Assessment— Condition of Quieting Title.—When the title of defendant to the lots was invalid for want of compliance with the statute, his only interest in the lots was the lien of the assessment, and the court properly rendered a decree quieting the title of the plaintiff on condition of paying into court for the benefit of the defendant the amount of such assessment, which fully protected the defendant in all of Ms rights.
SHAW, J.
Action to quiet title to two certain lots of real estate in the city of Los Angeles.
The complaint is in the usual form. The defendant answered denying that plaintiff was the owner of the lots, or had any right, title, or interest therein; and further alleged that he was the owner in fee of the same under and by virtue of deeds made, executed and delivered to him by the board of public works of the city of Los Angeles pursuant to certain proceedings had and taken by said board for the opening of Jefferson street in said city under and in accordance with the provisions of what is known as the ‘ ‘ Street Opening Act of 1903” (Stats. 1903, p. 376), whereby said lots were sold and conveyed to him for delinquent assessments made for the cost of such opening.
Judgment was rendered for plaintiffs. Thereafter, and in due time, defendants moved the court to vacate and set aside the judgment so rendered and to change and modify, as indicated in the notice of motion, the conclusions of law based upon the findings, which motion was by the court denied. Defendant appeals from both judgment and order.
The court found that plaintiff Rosa Hennessy was the owner of the real property described in the complaint; that defendant was not the owner thereof and had no right, interest, or estate in or to the same, “save and except such right as accrued to said defendant under two certain certificates of sale, issued to him on or about June 19, 1907, by the board of public works of the city of Los Angeles, pursuant to a sale of the property to said defendant for delinquent street widening assessment; that the amount of said sales was twenty-three dollars per lot, or forty-six dollars in all; that plaintiffs’
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right to redeem the property from said sales has never been foreclosed, that plaintiffs have the right to redeem said property from said sales, and the amount necessary to be paid to defendant to so redeem said property is sixty-nine dollars.” The court further found that the board of public works of the city of Los Angeles executed to defendant Hall deeds to both of the lots in question, but found that no notice of intention to apply for a deed, as required by section 28 of the street opening act of 1903, and no affidavit or affidavits showing service of said notice, either actual or constructive, were ever filed with said board of public works; and as conclusions of law, the court found that the deeds so executed to defendant by said board of public works were unauthorized and void, and that plaintiff Bosa Hennessy was entitled to a decree quieting her title to said real property upon payment into court, for the use and benefit of defendant, of the sum of sixty-nine dollars.
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