Elbert, Ltd. v. City of San Diego

MUSSELL, J. This is an action, filed February 13, 1951, for partition of real property in San Diego County and was brought pursuant to the provisions of section 752 of the Code of Civil Procedure. Plaintiff’s claims are based on two street improvement bonds issued by the city treasurer of the city of San Diego, Bond 219, Series 1130 and Bond 360, Series 903, both issued pursuant to the Improvement Act of 1911. Defendant’s title is based on a tax deed obtained from the State of California on October 3, 1946, pursuant to division 1, part 6, chapter 8 of the Revenue and Taxation Code, and a deed to the state dated August 1, 1935.

The trial court held with reference to Bond 219, Series 1130, that the claims of plaintiff under its commissioner’s deed were valid and on a parity with the claims of defendant under the rules stated in Monheit v. Cigna, 28 Cal.2d 19 [168 P.2d 965, 167 A.L.R. 995], and ordered partition of the property, and further held that the lien of Bond 360, Series 903, is conclusively presumed extinguished under the provisions of section 2911 of the Civil Code. Both parties have appealed from the judgment.

Defendant city attacks that portion of the judgment ordering partition and decreeing that the parties are owners of the property as tenants in common, each having an equitable lien thereon and plaintiff contends that the court erred in holding that the lien on Bond 360, Series 903 is conclusively presumed extinguished.

Bond 219, Series 1130

On June 16, 1930, one M. Blakesley commenced a foreclosure action in the Superior Court in San Diego County against the San Diego Beach Company, the then record owner of the property involved, to foreclose Street Improvement Bond 219, Series 1130, issued by the city treasurer of San Diego on February 25, 1929. Judgment of foreclosure was obtained in said action on January 7, 1931. A commissioner was appointed and sold the property to M. Blakesley and issued a certificate to her on February 9, 1931. There[662]after, M. Blakesley assigned her interest in the certificate of sale and the real property to the Pacific States Savings and Loan Company. On February 23, 1932, ,a commissioner’s deed was issued to said company and the deed was recorded June 30, 1932. On March 5, 1947, the Pacific States Savings and Loan Company executed and delivered its quitclaim deed of the property to plaintiff and that deed was recorded on March 13, 1947.