NEARY v. PETERSON ET AL

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District Court of Appeal, First District, Division 1, California.

NEARY v. PETERSON ET AL.*

Civ. 8948.

Decided: February 27, 1934

Horace L. Cook, of Los Angeles, for appellant. R. Dechter, of Los Angeles, for respondent G. M. Brown. J. Everett Brown, of Los Angeles, for respondents Grace P. Warden and C. W. Peterson.

Plaintiff brought this action to foreclose the lien of a street improvement bond issued by the city of Culver City under the Street Improvement Act of April 7, 1911, and acts amendatory thereof, alleging that at the time said bond was issued defendant Carrie W. Peterson was, and still is, the owner of the land upon which the said bond is a lien. Defendant Brown answered, denying that Carrie W. Peterson was the owner of said land named in said bond, and setting up the claim of ownership thereof by virtue of a tax deed issued to him by the tax collector of Los Angeles county. Judgment was rendered in favor of Brown; plaintiff moved for a new trial, and, the same being denied, prosecutes this appeal.

The facts of the case are as follows: Appellant is the owner of a street improvement bond issued by said city to the Gatzert Company on September 23, 1927, and by said company assigned to appellant. On August 5, 1929, a tax deed to the land in controversy was issued by the tax collector of Los Angeles county to respondent G. M. Brown; the said tax deed being based on a lien for the state and county taxes for the year 1923. The sole question to be determined on this appeal is as to these two liens, which of them is paramount or conveys a superior title.

It is well settled that, in the absence of statutory or constitutional provisions, a distinct priority exists in favor of general taxes over special assessments of every kind. La Mesa, etc., Irrigation Dist. v. Hornbeck, 216 Cal. 730, 17 P.(2d) 143, 146. In this case the court quoted with approval the following language from In re Dancy Drainage District, 199 Wis. 85, 225 N. W. 873, 876: “We shall not attempt to review the authorities bearing upon this question, because in our view the lien for general taxes is of a distinctly higher order than the lien of any special assessment, and we should not construe any statute as giving precedence to the lien of any special assessment over the lien of general taxes in the absence of a plain legislative command.” It also quoted with approval similar language in the cases of Robinson v. Hanson, 75 Utah, 30, 282 P. 782, 784, and Missouri Real Estate, etc., v. Burri, 202 Mo. App. 242, 216 S. W. 570, 571. The question then before us is whether or not there is any statutory provision that gives a special assessment precedence over general taxes.

La Mesa, etc., Irrigation Dist. v. Hornbeck, supra, was an action to compel the cancellation of certain taxes, assessments, tax sales, and tax deeds. Plaintiff had acquired title to certain parcels of land pursuant to sales for delinquent assessments. At the time same was acquired, various county taxes and special assessments had been levied against these parcels of land and had not been paid. It was the contention of the irrigation district that it was entitled to have all of these taxes, tax sales, and tax deeds canceled under section 3804a of the Political Code. The defendants contended that said district was not entitled to have the said taxes canceled under said section or under any other statutory or constitutional provisions. In the course of its opinion, in passing upon this case, the court said: “At a glance it will be seen that petitioners' position assumes precedence over all other public corporations as well as counties and municipalities, and moreover it impairs to some extent at least the functions of all these other agencies. It takes from one and gives to another. Counties and municipal corporations in particular have in charge the property, the liberty and the general welfare of the citizens, and are supported solely by taxation.” Later on in this opinion attention is called to section 3787 of the Political Code as amended in 1927 (St. 1927, p. 1666), which provides that the tax deed conveys to the state absolute title to the property described therein, free of all incumbrance except any lien for taxes levied for municipal, or for irrigation, reclamation, protection, flood control, public utility, or other district purposes, or for special assessments which are collected on the tax rolls, and in this connection the court says: “This section has been construed by our own appellate court and by the Supreme Court of at least one other state which has enacted it into their law, from which it is concluded that the legislative intent is to place all taxes, both for county, municipal, and other governmental agency purposes and taxes in the form of assessments in favor of special agencies of the state upon an equal footing before the law. Bolton v. Terra Bella Irr. Dist., 106 Cal. App. 313, 289 P. 678;” State ex rel. Malott v. Board of Com'rs, 89 Mont. 37, 296 P. 1. And again in this same case the court said: “From the above authority and upon our construction of the section we may now safely conclude that under our system of taxation liens in favor of county and municipal corporations and special assessments, under the authority of state agencies for public purposes are all on an equality. By this is meant that in case of delinquency a deed to any one of these agencies for such taxes will not obliterate the existing liens on the property in favor of any or all of the others unless, indeed, said section 3804a compels a different conclusion.”

Section 3804a of the Political Code has no bearing upon the matters involved in the instant case. All of the taxes and assessments imposed upon this tract of land were imposed under the authority of the state and were for public purposes. Therefore they must be adjudged to stand upon an equality.

The judgment is reversed.

JAMISON, Justice pro tem.

We concur: KNIGHT, Acting P. J.; CASHIN, J.