Imperial Irrigation District v. Varney

BARNARD, P. J. This is a quiet title action involving a number of lots in the city of Westmorland.

The plaintiff claims title under various deeds obtained through sales of the lots for nonpayment of assessments levied by the irrigation district. These deeds were taken, respectively, in the years 1935, 1937, 1938, 1939, 1941, 1942 and 1945. In each instance, the deed was given for one year’s [265]delinquency, being the latest available year, but a number of prior delinquencies existed, some of these delinquencies being prior to 1932.

The defendant Hickey was the owner of a number of bonds issued on June 23, 1932, for the installation of a sanitary sewer system, and made a lien on these lots. These bonds were issued under the provisions of the Improvement Act of 1911, and were ordered by the Westmorland Sanitary District under the provisions of the Sanitary District Act of 1923. (Deering’s Gen. Laws, 1937, Act 7105, now Health & Saf. Code, § 4700 et seq.) These bonds being in various stages of delinquency on May 1,1946, the county treasurer gave written notice of foreclosure proceedings if payments were not made within six months, pursuant to section 68 of the Improvement Act of 1911 [Stats. 1911, p. 1192; Deering’s Gen. Laws, 1937, Act 855], as amended (Stats. 1933, p. 2390), now section 6501, Streets and Highways Code.

On October 11, 1946, the plaintiff brought this action to enjoin the defendants from proceeding with the foreclosure of these bonds and to quiet its title against the liens of said bonds. The court found that the plaintiff is the owner of these properties subject to the effect of the liens of these respective bonds and the due foreclosure thereof, and concluded that these bonds represented a lien on the property with the right on the part of the defendant Hickey, upon his receiving deeds after due foreclosure of the bonds, to hold and own the property as a tenant in common with the plaintiff “under an ownership now known as the parity rule.” Judgment was entered accordingly, from which the plaintiff has appealed.

The appellant contends that its respective deeds extinguished the liens of the bonds held by the respondent Hickey and conveyed absolute title to the lots tó the irrigation district. It is pointed out that section 48 of the California Irrigation District Act (Stats. 1897, p. 254; Deering’s Gen. Laws, 1941 Supp., Act 3854) and now section 26300 of the Water Code, has at all times material here provided that such a deed, conveying property to an irrigation district for the nonpayment of assessments, shall convey an absolute title “free of all encumbrances.” It is argued that this eliminates any difference with respect to the times involved, due to a change in statutes, as mentioned in Smith v. Addiego, 54 Cal.App.2d 230 [129 P.2d 953], It is further argued that the parity rule, as applied in La Mesa etc. Irr. Dist. v. Horn-