Robinson v. Merrill (1890) · DecisionDepot

Robinson v. Merrill

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 11, 1890 No. No. 12900Published

Before: Belcher

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Holding. The court held that in an action to foreclose a street-assessment lien, the plaintiff bears the burden of proving that all owners of the assessed property are named as defendants, and failure to join all necessary parties precludes the enforcement of the lien.

Issues

Whether the plaintiff in a street-assessment lien foreclosure action bears the burden of proving that all owners of the property were named as defendants.
Whether an allegation in an answer identifying different owners constitutes new matter or a denial of the complaint's ownership averment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To maintain his action, it was necessary that the plaintiff make all the owners of the property assessed parties defendant.”

“Whether the defendants were such owners or not was therefore an issuable fact, and the burden of establishing, by competent proofs, the affirmative of the issue was clearly cast upon the plaintiff.”

Synopsis

Street Assessment — Foreclosure of Lien — Necessary Parties.—In an action to foreclose a street assessment upon a specific tract of land in the city and county of Sar. Francisco, under the act of 1871-72, all of the owners of the property assessed must he made parties defeudant, and the lien cannot he enforced against any of the owners, in the absence of another owner who is not joined as a defendant. '

Id.—Burden of Proof — Pleading — Issue as to Ownership — New Matter. — The burden of proof that the defendants sued in such action are the owners of the land is upon the plaintiff, where such ownership is denied by the defendants; and an answer alleging that another person, not sued, owns an undivided interest in the land is in legal effect merely a denial of the averment of the complaint as to ownership by the defendants, and is not an averment of new matter casting the burden of proof upon the defendants.

Belcher, C. C. This action was brought to foreclose a street-assessment lien upon a lot of land in the city and [12]county of San Francisco. The original complaint was filed in November, 1877, and an amended complaint in March, 1887. The court below gaxre judgment for the defendants, and the plaintiff appeals from, an order denying his motion for a new trial.

The complaint alleged, among other things, that the defendants were the owners of the property assessed. The answer denied this averment, and alleged that “ at all the times and dates of the proceedings set forth in the complaint, and particularly on the twenty-first day of May. 1877, the defendant J. C. Merrill and one Moses Ellis, who is not made a party defendant in this action, were the owners in common each of one half part undivided of the land mentioned in said complaint.”

At the trial, the plaintiff offered and read in evidence the original contract, assessment, diagram, and warrant, and affidavit of demand thereto annexed, together xvith the indorsements thereon, showing the due recording of all the papers, and also a deed of J. 0. Merrill, by the sheriff of San Francisco, conveying all the undivided one half part of the land in question to his co-defendant, the Hibernia Savings and Loan Society, on the ninth day of July, 1881, which was recorded on the eleventh day of the same month. The plaintiff then rested his case, and the defendants offered no evidence.

The court found that all the allegations of the complaint were true, except as to the ownership of the land, and as to that, “that the defendants were not the owners of said land on the twenty-first day of May, 1877, as alleged in said amended complaint, or at any other time,” and as a conclusion of law, that the plaintiff was not entitled to a judgment and decree in his favor, but that defendants xvere entitled to judgment for their costs.

To maintain his action, it was necessary that the plaintiff make all the owners of the property assessed parties defendant. (Hancock v. Bowman, 49 Cal. 413; [13]Clark v. Porter, 53 Cal. 409; Diggins v. Reay, 54 Cal. 525; Harney v. Appelgate, 57 Cal. 205.)

Robinson v. Merrill

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