ELBERT v. NOLAN

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

ELBERT, Limited, v. NOLAN et al.

Civ. 15844.

Decided: December 05, 1947

Robert E. Rosskopf, John F. Bender and G. Loshoncy, all of Los Angeles, for appellant. Arthur V. Kaufman, of Los Angeles, for respondents.

The within action relates to three vacant city lots. Plaintiff is the owner of street improvement bonds on the lots in question issued under the Improvement Act of 1911. St.1911, p. 730. No action has ever been taken to foreclose the bonds or collect the amount due thereon. The lots were acquired by the present owners at a tax sale.

Plaintiff brought the within action ‘for partition and declaratory relief against the tax buyers'. Following a trial, ‘The trial court denied plaintiff's right to partition, but found that a bona fide controversy did exist and rendered its judgment quieting title in the defendant tax buyers against all parties, subject to the liens of plaintiff's bonds. With reference to the bonds the Court found and adjudged: ‘That all amounts unpaid upon said bonds and until paid constitute valid and subsisting liens on said parcels of real property.’' The appeal is from the judgment.

On appeal, plaintiff asserts, ‘the right to maintain partition action upon said bonds' and therefore contends that ‘a decree of partition should have been rendered’, the property sold and ‘the proceeds distributed on the basis of the bond liens being on a parity with the tax titles'.

Appellant relies on section 752 of the Code of Civil Procedure as authority for the within action, the pertinent portion of which provides that the action may be brought ‘where real property is subject to a lien on a parity with that on which the owner's title is based, by the owner or by the holder of such lien.’ The bonds here in question were issued long before the above amendment was adopted. Assuming, but by no means deciding, that the amendment is merely procedural and hence applicable nevertheless, it provides no authority for the within action. As between an asserted lien based on an unforeclosed bond and a title based on a tax deed, there is no ‘parity’. Monheit v. Cigna, 28 Cal.2d 19, 168 P.2d 965, 167 A.L.R. 995, upon which appellant relies, is no authority for appellant's contention in this regard; the within action is not an action to quiet title among holders of tax deeds. At most, plaintiff's action is a suit in equity. Assuming again, but not deciding that, partition in such circumstances is a proper equitable remedy, the equities were determined by the trial court and there being no dispute as to the facts or sufficiency of the evidence the trial court's determination is conclusive on appeal. Appellant's contentions, therefore, cannot be upheld.

The judgment is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.