Board of Pension Commissioners v. Hurlburt

BARNARD, P. J. The plaintiff, on May 6, 1930, purchased a bond which had been issued by the city treasurer of the city of Los Angeles on February 21, 1930, covering a special assessment levied in connection with a street widening proceeding under the Street Opening Act of 1903 (Stats. 1903, p. 376). This bond represented an assessment upon a parcel of land which had been brought under the Land Title Law (Stats. 1915, p. 1932; General Laws, Act 8589) some time prior to April 23, 1926, and before the street proceedings in question were initiated. The defendant purchased this land and on May 21, 1931, there was issued to him by the registrar of titles of Los Angeles County' a certificate of title in accordance with the provisions of said Land Title Law. This certificate did not contain any memorial of or reference to the assessment or bond referred to and it is conceded that the clerk of said city had never filed in the regis[570]trar’s office a notice of the passage of any ordinance, resolution or order in connection with said assessment.

The plaintiff brought this action under section 98 of the Land Title Law, asking that a memorial of said street improvement bond and assessment be made upon such certificate of title. In his answer, the defendant set up the failure of the clerk to comply with section 94 of the Land Title Law and alleged that he had acquired the property for a valuable consideration and without notice of the assessment represented by said street improvement bond. The court found that the clerk had failed to file in the registrar’s office the notice provided for in section 94 of the Land Title Act and that the defendant had purchased the land without actual notice of this assessment, but gave judgment for the plaintiff, and this appeal followed.

The appellant maintains that the judgment is erroneous because the notice provision of section 94 is mandatory; that the failure of the clerk to give this notice removes any lien that might otherwise have accrued under the street widening proceeding and renders the assessment and this bond void and unenforceable as against him; that the decision of the court gave no effect to section 94 of the Land Title Act; that said section 94, being special in nature, must be held to be controlling over section 34 (subd. 4) of that act, which is general in nature; and that under section 95 of the act this assessment and bond could not affect his title, acquired before a memorial of the assessment was entered upon the register.

The effect and interpretation of sections 94 and 95 of the Land Title Act were considered in the case of Rutledge v. City of Eureka, 195 Cal. 404 [234 Pac. 82], and most of what was there said in connection therewith is applicable here. It was there held that the provision for a notice contained in section 94 of the act is directory and not mandatory, and that section 95 of the act does not refer to the notice or memorial provided for in section 94 but refers only to the memorial of statutory or other liens referred to in other sections of the act, the court saying: