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District Court of Appeal, Second District, Division 2, California.



Civ. 14463, 14464.

Decided: August 09, 1944

Ralph Miller, Edwin J. Miller, John F. Poole, and W. S. Weatherwax, all of Los Angeles, for appellants. Ralph K. Pierson, of Compton, and John F. Bender and Gizella Loshoney, both of Los Angeles, for respondents.

Basing their claims upon tax deeds from the state to the city of Compton and upon quitclaim deeds from Compton and from Pacific Land and Title Company to the Fry Company, plaintiffs instituted these actions separately to quiet title to the several lots in that city. No affirmative relief was demanded. The cases were tried at different times before the same judge; most of the counsel for the parties were the same; the issues were identical. It was therefore not inappropriate that the parties filed a single set of briefs to apply to both actions. We shall attempt to dispose of the two cases with a single discussion.

The city of Compton introduced as proof of its title to lots 1, 2, 22 and 23, Boland Tract, the following: (1) Tax deed to the state; (2) deeds from the state to city, with copies of resolutions of its city council, accepting the tax deeds on behalf of city; (3) estimates of the necessary redemption sums for each lot with the collector's certificate that they include the amounts of the assessments levied for public improvements; (4) assessment rolls for the assessment district; and (5) the city's resolutions of intention, numbers 233 and 242.

The Lloyd A. Fry Roofing Company, herein referred to as Fry, in proof of its title to 16 lots in the Boland tract and lots 50, 51, 52, 65 and 66 in tract 9584 submitted the following proof: (1) Tax deeds to the state; (2) tax deeds from the state to the city of Compton; (3) resolutions of its board of trustees accepting the deeds from the tax collector conveying lots 65 and 66 of tract 9584, and resolutions accepting the bid of Fry for the lots 50, 51, 52, 65 and 66, tract 9584, and lots 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 25, 26, Boland tract, and deeds conveying same to Fry; (4) quitclaim deed from Pacific Land and Title Company to Fry Company conveying lots 10 and 26, Boland tract; (5) redemption estimates with the tax collector's certificate that they included the amounts of the assessments levied for public improvements; (6) assessment rolls and resolutions of intention (Nos. 233 and 242) to improve designated streets and to construct specified improvements.

Since no claim was made by any defendant to the lots in tract 9584, the judgment as to them is final. Also, inasmuch as no attack was made by appellants upon the deed of the Pacific Land and Title Company, quitclaiming lots 10 and 26, Boland tract, the judgment may be deemed final as to those two parcels.

It is our task to determine whether the evidence introduced by plaintiff is sufficient to support the finding of plaintiffs' ownership as against the unfortunate taxpayers.

Excessive Levies, 1927, 1929.

Appellants attack the judgment first on the ground that the levies for the years 1927 and 1929 were excessive. The title to only two of the parcels in question were vested in the state by virtue of the 1929 delinquency, towit, lots 10 and 26, Boland tract. However, all questions involved with respect to them, with the exception of the alleged excessive levy of that year, are identical with those arising with respect to the 1927 delinquency. Their logic is that in fixing the tax rate on realty in 1927 the supervisors failed to consider the entire sum of $432,567.34, the amount of taxes levied upon unsecured personalty for the benefit of the General Fund, but in fixing the tax rate on realty for the General Fund they applied only $371,012.96. In other words, $61,544.38 was not used to reduce the levy on realty for benefit of General Fund. The tax rate necessary to produce the latter sum is $.0021 per $100 assessed valuation. By similar process they show that the 1929 rate was excessive by $.004 per $100. They argue that in fixing the rate on realty for the benefit of the Salary Fund in 1927 they applied a sum which was $86,705.70 less than the amount of the levy on unsecured personalty, which sum would require a rate of $.0030637 per $100 valuation to produce it. In making the latter contention they proceed beyond the record. There was no evidence with respect to the Salary Fund.

Two Remedies Available.

But if a record owner has any objection to the budget of the supervisors for any fiscal year he is privileged, after notice that such budget is available, to appear and be heard concerning any item thereof. No proof appears that such opportunity was denied appellants. Their objections to the budget and the levies based thereon for the years in question must therefore be deemed to have been waived. Strong v. Mack, 64 Cal.App.2d 739, 149 P.2d 401; section 3714, Pol.Code. Moreover, they had another remedy readily available: they were privileged to pay excessive taxes assessed against their lands under protest and sue for a refund, or to pay their taxes and file a claim and later recover the excess should the supervisors refuse to order a refund. Sections 3804 and 3819 Pol.Code as they existed prior to 1939; Strong v. Mack, supra. Neither appellant exercised either of those remedies.

But even if both had been proved they would be unavailing by reason of the provisions of the Curative Act of 1943 which reads as follows:

“Section 1. Every act and proceeding heretofore taken by any county, city and county or the officers thereof relative to the preparation, transmitting, computing, determining or fixing the budget or the tax rate or rates of any county or city and county, or to the assessment or equalization of property or to the levy of taxes thereon or to tax sales or certificates of tax sales, tax deeds or other conveyances resulting from such assessment, equalization and levy, are hereby confirmed, validated and declared legally effective.

“Sec. 2. (a) This act is limited to the correction of defects, irregularities and ministerial errors which the Legislature originally could have omitted from the statutory requirements of law under which the acts hereby confirmed, validated and declared legally effective were taken.

“(b) This act is limited to the validation of acts and proceedings to the extent to which the same can be effectuated under the State and Federal Constitutions.

“Sec. 3. If any provision of this act or its application to any person or circumstances is held invalid, the remainder of the act and the application of its provisions to other persons or circumstances is not affected.” Statutes 1943, p. 1993.

This Act is the most recent attempt by the Legislature to expedite the rehabilitation of tax–frozen properties to the end of restoring the affected lands to the tax rolls. By that statute “Every act and proceeding * * * relative to the * * * computing, determining or fixing the * * * tax rate or rates * * * are hereby confirmed, validated and declared legally effective.” The method of computing and fixing the budget and the tax rates in 1927 and 1929 was prescribed in Section 3714, Political Code. If the lawmakers had then the power to determine the method prescribed in that statute, it had the power in 1943 to amend or repeal the existing method and to enact a measure that would validate an erroneous proceeding. The defects in the assessments consisting of the alleged excesses of the levies here, which were not more than two cents per parcel, were therefore cured by the Act of 1943. That the legislature possessed the power to enact such a statute is now beyond conjecture. The Act not only validates future deeds based upon past erroneous levies, but also it cures prior tax proceedings including those involved in pending litigation. Miller v. McKenna, 23 Cal.2d 774, 147 P.2d 531. The curative power of the Act remedies all irregularities or omissions which could have been authorized by the formerly prevailing statute. Id.

Assessments for Improvements Included.

Included with the delinquent taxes for which many of the lots in the Boland tract were sold by the tax collector to the state, June 1928, were the amounts of certain installments of special assessments levied by the city of Compton for public improvements in the year 1923. Appellants contend that these assessments were invalid because the lots were not described in the assessment roll and diagram; that no assessment number was given the Boland tract; that the roll must state the number of each lot; that although parcels on the diagram are identified as parts of the Boland tract, “* * * it cannot be said that the Boland tract was therefore in the assessment district.” It is asserted that these alleged irregularities are jurisdictional and that, consequently, the tax deeds of such lots are fatally defective. In this appellants err.

The assessments in question were levied pursuant to the Improvement Act of 1911, Stats.1911, p. 730, as amended, Stats.1921, p. 334. By subdivision 10 of section 20 it is provided that “whenever the resolution of intention declares that the costs and expenses of the work and improvement are to be assessed upon a district, the city engineer shall make a diagram of the property affected or benefited by the proposed work or improvement, as described in the resolution of intention, and to be assessed to pay the expenses thereof. Such diagram shall show each separate lot, piece or parcel of land, the area in square feet of each of such lots, pieces or parcels of land, and the relative location of the same to the work proposed to be done, all within the limits of the assessment district; and when said diagram shall have been approved by the city council, the clerk shall certify the fact and date thereof.” The same subdivision provides that the superintendent of streets shall “assess upon and against said lands in said assessment district the total amount of the cost and expenses of such work, and in so doing shall assess said total sum upon the several pieces, parcels, lots or portions of lots, and subdivisions of land in said assessment district benefited thereby.” We have examined the warrants, assessment rolls and diagrams issued in February and in May 1923, but find none of the vices mentioned to be fatal. The maps of the assessment districts give each lot a separate number and each block and tract a number or a name. The assessment roll also contains a description of each lot by its number and the number of its block and tract and map book reference. After each lot number appears the original amount of the assessment. Each of the resolutions of intention providing for both of the assessments contains a meticulous description of the assessed area and other data required by the Act, and they show that they were levied pursuant to the Improvement Act of 1911. Section 23 of that Act makes the assessment, when recorded, a lien upon the lots assessed until discharged by the payment of the assessment or the bonds issued thereon. The argument that the roll contains no sufficient description because the name or the number of each tract or subdivision is not repeated in each line opposite the number of the lot assessed is not supported by a fair interpretation of the document. On both the assessment for sewers and that for improvement of streets the names or numbers of the tracts are entered in such manner as reasonably to show the tract to which each lot belongs.

The record owner having paid four installments of his assessments on the lots in question, he must be presumed to have had notice of the assessments and to have acceded to their validity. Any objections to an act or proceeding occurring prior to the date of the first publication of the notice of award relative to such improvement must be made in writing. Having permitted years to elapse after the assessment, he is now barred from asserting defects in the descriptions of his properties. Any proceeding to annul or correct an assessment must be commenced within 30 days after the recordation of the warrant, on failing to do which the property owner is thereafter barred from a defense of the invalidity of the assessment. Improvement Act of 1911, supra, Sec. 26; Noyes v. Chambers & De Golyer, 202 Cal. 542, 261 P. 1006; Garibaldi v. Daly City, 63 Cal.App.2d 480, 147 P.2d 122. During the period of constructing such improvements and for all time thereafter, they were open to view by the property owners and were made at great expense to the contractor who relied upon his lien as security for his charges. He was as much entitled to the benefits of a paternal and benign statute as were the property owners. Haughawout v. Raymond, 148 Cal. 311, 312, 83 P. 53.

Insofar as they are affected by the special assessments the deeds to the state are further fortified. While the two assessments were levied under the Act of 1911, the bonds issued against the lots in each assessment district were issued pursuant to the Improvement Bond Act of 1915, Stat.1915, p. 1441, and the assessments were to be collected according to the latter act. Section 12 of that statute provides for the delinquency of the installments of principal and interest to occur at the same times and in the same proportionate amounts and to bear the same proportionate penalties and interest after delinquency as do the municipal taxes on realty. It also provides that where sales are made to the state for non–payment of such taxes, the state shall hold the title on behalf of the city and, in event of either redemption or sale, shall account to the city for the money received. The purchaser at such sale takes the property subject to all unpaid portions of the assessment. Section 17 of the same act provides that the deed issued pursuant to such sale is primary evidence of the regularity of all prior proceedings and conveys absolute title free of all encumbrances except the lien for domestic taxes. The cited sections of the 1915 Bond Act, as well as section 11 and 15, show clearly that special assessments are not in the same category as taxes. Upon default in the payment of an assessment for public improvements the property is not deeded to the state with the same effect as in the case of the deed for non–payment of taxes. When deeds are made to the state for non–payment of such assessments it holds the title in trust for the city which is deemed to be the real purchaser.

While in these cases the city might have brought foreclosure proceedings in court, it followed the other course provided by the Act of 1915 and foreclosed the assessment lien by sale to the state. No invalidating vices in the special assessment proceedings having been proved, the sale to the state to enforce the lien for improvements was valid. Consequently the deeds to the state after the lapse of five years conveyed a valid title, and in turn the state's deeds to the city vested it with absolute title notwithstanding the fatality of alleged defects in the tax proceedings. On this point appellants contend that where land is sold for taxes, part legal and part illegal, the sale is void, and they cite many authorities in support of such contention. Wills v. Austin, 53 Cal. 152; Low v. Lewis, 46 Cal. 549; Bucknall v. Story, 36 Cal. 67. But these cases related to absolute conveyances to the state and not as trustee for the city. In the Wills case the very statute under which the tax was levied was void. In the Low case the city and county had taxed its own property, which act was a nullity. The situation is different in the event that title is taken by the state as trustee for the city. Where title is thus taken the state holds two interests for two separate entities, one for the county, the other for the municipality which in turn is trustee for the bond holders. Wulff–Hanson & Co. v. Silvers, 21 Cal.2d 253, 131 P.2d 373. The two interests are severable. If the installments due the city be paid, the validity of the conveyance to the state is not thereby in the least affected. The only result would be to reduce the amount necessary to redeem prior to the sale at public auction after the lapse of the five–year period.

“Penalties and Costs” Not Omitted.

Appellants contend that the notice of sale for the 30th of June 1928 contained an erroneous statement for what the sale was to be made. The notice was that the real estate upon which taxes and assessments are a lien would be sold. “Penalties and costs,” say appellants, were omitted and that omission rendered the notice void. Citing Warden v. Ratterree, 215 Cal. 215, 216, 217, 9 P.2d 215, 86 A.L.R. 1504; Chapman v. Jocelyn, 182 Cal. 294, 300, 187 P. 962; Fox v. Townsend, 152 Cal. 51, 58, 59, 91 P. 1004, 1007, etc. The notice was a substantial compliance with section 3764, Political Code, providing that the notice must contain the names of the persons and a description of the lots and “an amount equal to the total amount of all taxes, assessments, penalties, and costs due.” The notice did specify “that unless the total amount of all taxes, assessments, penalties and costs due and which are a lien,” etc. Also, following the description of the properties, the names and the total amount claimed to be due on each lot, the notice concludes “* * * that the figures * * * do represent respectively * * * the total amount of taxes, assessments, penalties and costs for which the property was sold to the state.” But had the phrase “penalties and costs” been omitted, such omission would not have vitiated the Delinquent Tax List, in view of the Curative Act.

Sale and Publication Incorrect Amounts.

In attempting to establish that the lots were sold for incorrect amounts appellants offered their computations of the delinquent sums on lots 1, 2, 22, and 23. By their computations they make the sum due on lots 1 and 2 $1.86 less than the amount that should have been received and they show the sum received for lots 22 and 23 to be 16 cents below the amount of principal, penalties and costs due and that “all sales were correspondingly incorrect.” Citing Chapman v. Jocelyn, 182 Cal. 294, 300, 187 P. 962. We cannot assume that all sales were other than correct, for the presumption arising from the sale to the state is that the amount claimed as against a parcel was the legal and correct sum due. To illustrate the error of appellants' computations on lots 1 and 2, we now compute the tax and penalties according to Section 3756, Political Code, which then required (Statutes 1927, p. 962) the addition of a penalty of 10 per cent upon default in payment of the first half and another five per cent if that installment be not paid before April 1; also it required the addition of five per cent if the last half be not paid prior to the delinquent date and 50 cents cost if no redemption prior to publication. The following computation as to lots 1 and 2 pursuant to the cited section demonstrates that the amounts specified in the notice were in compliance with the statute.

This is the sum specified in the notice. The error claimed with reference to lots 22 and 23 is dispelled by application of the same statute.

We find nothing in the cited section requiring the addition of any other sum. The sale was made for the lawful amount. Appellants by their quotation from Chapman v. Jocelyn, supra, imply that the amounts for which the lots were sold to the state were the “amounts of the matured coupons affixed to the bonds” and that these did not represent the amount of interest on the entire principal. Whether the amounts for which the properties were sold to the state were identical with the amounts of such coupons we have no knowledge. In any event as above demonstrated the amounts were correctly computed, and even had there been some slight error in the computation it is ineffectual in view of the language of the Curative Act.

Descriptions in Tax List Sufficient.

It is contended that the published notice of June 8, 1929, of “Delinquent Tax List” contained no sufficient description of the lots to be sold, that such defect is jurisdictional and therefore renders the sale void. Citing Smith v. City of Los Angeles, 158 Cal. 702, 709, 112 P. 307; Harvey v. Meyer, 117 Cal. 60, 64, 48 P. 1014; Sherwood v. Wallin, 154 Cal. 735, 99 P. 191; Schutz v. Merrill, 96 Cal.App. 58, 273 P. 863. We find no requirement absent from the document as required by law. Sections 3658, 3764 Pol.Code. Following the notice is a list of the lots, giving the name or number of the tract, beneath which is the number of each lot of that tract. Opposite the lot number is the total amount of the delinquency. The “sale” is noticed for June 30, 1928.

Appellants lay special emphasis upon lot 25, Boland tract. It is argued that this lot is not mentioned as one of the lots of the Boland tract appearing on the “Delinquent Tax List for the year 1927.” It is true that “Lot 25” is not on the list, but in its place appears “Do. Lot 24,” a repetition of the entry above it. This is clearly an inadvertence, the intention of the author of the list undoubtedly being to write “Do. lot 25,” the ditto being for Boland tract. That this defect is not serious will readily appear.

Beneath the second entry of “Do. lot 24” appears the following: “* * * See Sale Nos. 363, 364, 366 in Addenda to this list.” By referring to sale Number 366 of the “addenda,” Lot 25 would have been found specified as one of the parcels to be sold at the time designated. But there is another reason why even the nonappearance of “Lot 25” in the list of Boland lots is not fatal to the notice of June 30, 1928. That was merely a notice that the lots would be sold to the state. Such notice involved no question of due process of law with respect to the “sale” to the state. In fact it was not a sale in the ordinary acceptation of that word. The incident there referred to as a “sale” was the application of Section 3764, Political Code. It was in effect a mere bookkeeping device for the purpose of recording the date of the commencement of the five–year period during which the absolute right of redemption continues. At such sales there are no bidders for the delinquent property. During the five–year period the liens are not extinguished (Sec. 2194, Rev. and Tax.Code St.1939, p. 1308; Sec. 3716, Pol.Code), and the taxpayer continues to enjoy the benefits of ownership. Sec. 3651, Rev. and Tax.Code, St.1941, p. 1429. The assessment of the property continues until finally sold at public auction. Sec. 406, Rev. and Tax.Code. At the expiration of the five–year period, if not redeemed in the meantime, it is sold at public auction to the highest bidder for case. Sec. 3771a, Pol.Code. It is thus seen that the effect of the “sale” on June 30, 1928 was not to divest the record owner of lot 25 of his title or of his right of enjoyment. Following the assessment for taxes in 1928, and the non–payment thereof, another delinquent list was published while the record owner still maintained his status as owner subject to the liens created by prior assessments and levies. Crocker v. Scott, 149 Cal. 575, 87 P. 102; In re Seick, 46 Cal.App. 363, 189 P. 314; Bray v. Jones, 20 Cal.2d 858, 129 P.2d 357; Campbell v. Woolner, 57 Cal.App.2d 511, 134 P.2d 822; Smith v. Addiego, 54 Cal.App.2d 230, 129 P.2d 953; Rostain v. Guggenheim, 63 Cal.App.2d 127, 146 P.2d 247. By the tax deed to the state and the tax deed from the state, respondents established the regularity of all proceedings prior to the vesting of title in the state in September 1933. Sec. 3806, Rev. and Tax.Code; Secs. 3786, 3787, Pol.Code.

However, since the requirements as to description of the lots to be sold are wholly statutory, the Curative Act disposes of the questions raised concerning the descriptions. Miller v. McKenna, supra; Chase v. Trout, 146 Cal. 350, 80 P. 81. There is no jurisdictional fact omitted. The defects recited by appellants appear only in the notice of June 1928. Occasion for the mention of such defects could have become jurisdictional only in connection with the subsequent notices to sell at public auction to the highest bidder for cash. Secs. 3771a, 3785, 3786, 3787. Inasmuch as that notice was not attacked it is presumed to be correct by virtue of the deeds to the state which terminated the absolute right of redemption. Secs. 3786, 3787, Pol.Code; Secs. 3805, 3806, 3807, Rev. and Tax.Code.

Appellants have vigorously contended that no notice was given as required by Chapter 8, Part 6, Division 1, Revenue and Taxation Code, and that no proper notice was mailed. But the record discloses that such notice was given as required by that chapter. It was established by the testimony of deputy tax collectors Murphy that his office sent notice of the sale by registered mail to James J. Boland, Administrator, the last assessee, addressed to him at Los Angeles, California, the county seat, and that the tax collector had no address for Administrator Boland. Sec. 3799, Revenue and Taxation Code, St.1939, p. 1343.

The judgments in both cases are affirmed.

MOORE, Presiding Justice.

McCOMB, J., concurs.

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