MILLER v. MCKENNA ET AL

Reset A A Font size: Print

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

MILLER v. MCKENNA ET AL.

Civ. 12009.

Decided: October 01, 1942

Edwin J. Miller in pro. per., and Ralph W. Miller, both of Los Angeles, for appellant. W. Verne Ahrens, Ernest M. Best, Ratzer & Bridge, and Glenn A. Lane, all of Los Angeles, for respondents.

This is an appeal by the plaintiff from a part of the judgment rendered in an action to quiet title. The plaintiff in his complaint sought to have his title quieted to 103 lots in the Ela View Tract in the city of Los Angeles. He named many defendants. Of those so named D. B. Flenner, F. G. Hall, Katharina Haug, Mary Voelker, Guadalupe and Francisca De Los Rios filed answers. D. B. Flenner also filed a cross–complaint. That pleading was answered by the plaintiff. On the issues so framed the action was tried before the trial court sitting without a jury. Each party introduced evidence purporting to show a paper title. The court made findings in favor of the plaintiff as to all of the lots excepting ten. As to those ten lots it made findings in favor of the defendants whom we have specifically named. Insofar as the judgment rests on the findings last mentioned the plaintiff has appealed and has brought up the judgment roll and a bill of exceptions.

Each of said defendants herein specifically named presented a claim of title based on a tax deed. The findings of fact and conclusions of law show that the trial court held that such title, under all of the facts and the law applicable thereto, was valid. In legal effect the plaintiff contends such holding was erroneous. We think he is clearly mistaken.

The record shows that the city and county taxes on the lots, the title to which was confirmed in defendants Guadalupe and Francisca De Los Rios, for the year 1917, were not paid, that the property was later sold therefor, that by mesne conveyances the said defendants became, and are now, the owners of such tax titles. The same facts exist as to each of the other defendants except their tax deeds rest on the nonpayment of the city and county taxes for the year 1911.

Both parties admit that each tax title was irregular, but the plaintiff goes further and claims each tax title was void. In the last mentioned claim rests the vice in his reasoning. The particular facts on which he makes his claim as to the invalidity of the tax deeds based on the levy for 1911 and the levy for the year 1917 are as follows. The notices of the tax sales for taxes delinquent in 1911 and 1917 did not separately state the amount “of the taxes, penalties, and costs” for which the property was to be sold. But, on the contrary, said notices stated the total amount. In Gottstein v. Kelly, 1929, 206 Cal. 742, 276 P. 347, the Supreme Court held such recital was insufficient and deeds based on such recitals were invalid. Relying on that decision this plaintiff contends the same ruling should be made in the instant case. However he concedes that a curative act was passed. Stats.1929, p. 745. But that act he claims was not applicable in the instant case. He concedes the trial court held otherwise but he claims that in so holding the trial court erred. We think not. The trial court was merely following the decision entitled Clayton v. Schultz, 1935, 4 Cal.2d 425, 50 P.2d 446. That decision answers against him every contention which this plaintiff makes. It holds that the irregularity above mentioned was not jurisdictional, that the irregularity could be avoided by a curative act, that the act of 1929 above mentioned was such an act, that in terms it was retroactive, and that it was applicable to deeds made prior to the enactment of said statute. Therefore it does not appear that said tax deeds were void.

In 1915, George M. Pearson and wife claimed to own all of the 103 lots involved in this action. In that year they executed a mortgage thereon. They fell in default. The mortgage was foreclosed, the property was sold under execution, and this plaintiff became the owner of the interest so sold under execution. He made no attempt to show that he was ever in possession and he made no attempt to trace title back to any earlier date. In 1911 the property was assessed to Charles M. Simpson who was presumably the then owner. The record shows that all defendants except Guadalupe and Francisca De Los Rios deraigned their title from Charles M. Simpson. Under such facts the plaintiff was not entitled to a judgment against the defendants D. B. Flenner, F. G. Hall, Katharina and John Haug, and Mary Voelker. San Diego Imp. Co. v. Brodie, 215 Cal. 97, 100, 8 P.2d 1027.

The plaintiff relies on the judgment in the mortgage foreclosure proceedings as a bar. But it is sufficient to state that no one of the defendants was a party to that action and therefore no one of them was barred by said judgment. Other points presented in the briefs need not be discussed.

The portion of the judgment appealed from is affirmed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.

Copied to clipboard