Paules v. Elbert, Ltd.

NOURSE (Paul), J. pro tem.* By his complaint in this action appellant sought to quiet his title to certain real property in the city of Hermosa Beach against the claims of defendant Elbert, Ltd.

By the judgment appealed from the trial court decreed that defendant is the owner of and entitled to possession of the real property in question and that plaintiff has no right, title or interest therein.

The facts are not in dispute. They are:

Defendant acquired a street improvement bond issued under the Improvement Act of 1911 under date of August 25, 1925. This bond was a lien on the subject property. It was payable in equal installments, the last installment falling due on January 2, 1945. No installments of either principal or interest were paid except those falling due on or prior to July 2, 1931.

In September 1944 one Eugene C. Johnston acquired title to the property through a tax deed from the city of Hermosa Beach.

In October 1944 Johnston executed a quitclaim deed to plaintiff but this deed was not signed by his wife, was not acknowledged and was not recorded. On June 30, 1950, Johnston and his wife executed a quitclaim deed to plaintiff but this deed was not recorded until June 24, 1953.

On July 12, 1950, defendant here commenced an action in partition against Johnston et ux., alleging that it was the [328]owner of the above mentioned street improvement bond (a full copy of the bond was annexed to the complaint as exhibit A) and that defendant claimed some interest in the property under the tax deed mentioned above. That Johnston had paid $30 for the conveyance of the property to him. A lis pendens was duly recorded.

Ip the partition action the Johnstons were duly served but defaulted and on May 11, 1951, an interlocutory decree in partition was entered. By the terms of this decree it was adjudged that Elbert, Ltd. (the plaintiff there) was the owner and holder of a lien on the property consisting of the unpaid balance of $256.92 on the street improvement bond; that Johnston was the owner of an equitable lien in the sum of $30 and that said lien was on a parity with that of the bond.

The interlocutory decree appointed a referee with authority to sell said property and directed that the proceeds of sale after the payment of referee’s fees, costs and attorney fees, should be applied to the satisfaction of the two liens or if insufficient to totally satisfy them then to be prorated between them. The referee sold the property to Elbert, Ltd. for the sum of $200 and paid to Johnston his pro rata share of the net proceeds of the sale. A final decree was duly entered and the referee executed a deed to the purchaser pursuant to the terms of that decree and the interlocutory decree.