Churchill v. Title Insurance & Trust Co.

BARNARD, P. J. This is an action by a bondholder to foreclose a number of street improvement bonds issued on November 22, 1929, as payment for work done on certain streets or roads in the county of Orange. A demurrer to the complaint was overruled, an answer was filed and a trial was had followed by a judgment in favor of the plaintiff, from which one of the defendants has appealed.

Among other things, the complaint alleges that the bonds were issued by virtue of the County Improvement Act of 1921 (Stats. 1921, p. 1658) and all acts incorporated therein [412]including particularly the Street Improvement Act of 1911. It is then alleged that the bonds were in certain named amounts with interest at 6 per cent payable at the time and in the manner specified therein; that the bonds represented the cost of certain street work as more fully described in a certain assessment and diagram which is referred to; that the bonds are a lien upon certain described real property belonging to the appellant; that the bonds are in default in certain respects which are set forth; that the plaintiff has elected to declare the whole amount of the principal of said bonds due and payable; that certain penalties have accrued; and that written notice and demand that payment be made within thirty days had been served. Copies of the bonds, including copies of the coupons, are attached to the complaint.

At the trial the respondent introduced the bonds in evidence with proof that they had been signed and issued by the then county treasurer, introduced a certificate of the present county treasurer and oral evidence showing what payments had been made upon the bonds and what payments thereinu provided for were delinquent, and made proof of the service of a notice and demand for payment and the filing of a lis pendens. In presenting its case the appellant introduced in evidence a resolution of the board of supervisors ordering the work which has resulted in the issuance of the bonds, which resolution ordered the work done under the direction of “Nat H. Neff, a County Employee of said County, to wit, the Superintendent of Highways”, and that the materials used “shall comply with the specifications and be to the satisfaction of said Nat H. Neff, instead of the County Surveyor of said County.”

The first point raised by the appellant is that the complaint was insufficient in that it failed to allege the passage of a resolution of intention, the making of surveys, maps and estimates, a resolution awarding work, the performance of the work, and the making of the certificates and assessments required by the Improvement Act of 1911 and the County Improvement Act of 1921.