Rostain v. Guggenheim

BARNARD, P. J. This is an action to quiet title. There is no dispute as to the facts. On February 2, 1926, a bond was issued as a lien on the property in question pursuant to the Improvement Act of 1911 (Stats. 1911, p. 730; Peering ’s Gen. Laws 1937, Act 8199, as amended). No payment of principal or interest was ever made on this bond and because of a default on the first payment the city treasurer [128]advertised and sold the property in question and on September 2, 1927, issued a certificate of sale to the predecessor of the defendant Alexander Construction Company.

Municipal taxes on this property levied by the city of Delano were not paid and on December 27, 1933, the city tax collector duly sold said property to the city of Delano to satisfy said tax lien. At that time, section 4390 of the Political Code provided that the mode of collecting city taxes was the same as provided in that code for collecting state taxes. The right of the city to a deed to this property, if redemption was not made within five years, was preserved to the city in the act of 1937, which repealed section 4390 of the Political Code (Stats. 1937, chap. 221). On November 28, 1939, the city tax collector issued a tax deed to the city of Delano conveying title to this property for the nonpayment of the delinquent tax. On February 15, 1940, the city of Delano, through its tax collector, issued a tax deed to this property to the plaintiff herein.

In this action which followed the court found that the plaintiff’s title under his tax deed was paramount, that he was the owner in fee of the property, and that the defendant Alexander Construction Company had no right, title or interest therein. Judgment was entered accordingly and the Alexander Construction Company has appealed.

The main question presented is whether the tax deed relied upon by the respondent had the effect of extinguishing the rights of the appellant under its certificate of sale based upon a default in the payment of the street assessment bond. This question depends upon the law in force on November 28, 1939, when the property in question was deeded to the city of Delano for the nonpayment of delinquent taxes. (Campbell v. Woolner, 57 Cal.App.2d 511 [134 P.2d 822].) In that case, this court said:

“At that time, section 3897 of the Political Code had been repealed and, while the Revenue and Taxation Act was not yet in effect, sections 3833.2 and 3836.1 had been added to the Political Code, effective as of September 19, 1939. (Stats. 1939, chap. 529.) Section 3836.1, thus added, provided that the deed from the tax collector to the state should convey a clear title free of all encumbrances except (c) Any lien for direct assessments. ’ Section 3833.2 defined a direct assessment as ‘an assessment levied by a district the bonds of which