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District Court of Appeal, Second District, Division 3, California.



Civ. 17438, 17439.

Decided: October 27, 1950

Robt. E. Rosskopf, John F. Bender and Gizella M. Allen, all of Los Angeles, for appellants. Dailey S. Stafford, Covina, for respondents Stuart Hamblen and Veeva Ellen Hamblen. T. Guy Cornyn, Arcadia, and Burke, Marshall & Burke, Los Angeles, for respondent City of Arcadia.

These are companion actions to quiet title against tax deeds, and for declaratory relief.

In 1931, Anita M. Baldwin owned two contiguous lots of five acres each in the city of Arcadia, known as lots 14 and 15, Los Robles de Santa Anita. In that year the first half taxes were paid on both lots, but the second half, $64.51 on lot 14 and $64.22 on lot 15, were not paid. A delinquent tax list was published in 1932; the property was not redeemed, and was automatically recorded as sold to the city of Arcadia on June 30, 1932, for the amounts of $68.23 on lot 14 and $67.93 on lot 15. On September 28, 1942, the tax collector deeded the property to the city of Arcadia. On December 20, 1935, lot 15 was conveyed by Anita M. Baldwin to plaintiff Sterling M. Pailing, and lot 14 to plaintiff Lowry B. McCaslin. The new owners entered into and retained sole and exclusive possession of the land until on or about June 18, 1947, when defendants Hamblen, claiming title under tax deeds, entered thereon. After the property was deeded to the city plaintiffs offered to redeem and tendered the necessary amounts for redemption, but their tenders were refused. On June 16, 1947, the defendants purchased lot 14 for $10,000 and lot 15 for $9,000 at a tax sale based upon the tax delinquency and sale of 1932. Tax deeds were issued to defendants by the tax collector of the city of Arcadia June 18, 1947. The present actions were commenced June 26, 1947, to quiet title against the tax deeds and for declaratory relief. They were tried once and the judgments were favorable to plaintiffs. Motions of defendants for a new trial were granted and defendants were permitted to amend their answers by setting up as a bar to the action section 175 of the Revenue and Taxation Code. Upon a retrial of the actions, judgments went for the defendants under general findings and conclusions in each case that they are the owners of the property and that the plaintiffs have no right, title or interest in or to the same. Plaintiffs have appealed and the parties have filed a single set of briefs on the two appeals. As already indicated, the material facts in the two cases are identical.

Although numerous defects in the taxation proceedings are urged by plaintiffs, it will not be necessary to consider all of them. We have reached the conclusion that the proceedings leading up to the 1932 sale to the city and also the proceedings preliminary to the execution of the deed to the city in 1942, were fatally defective for failure to comply with the city ordinance in giving notice. We have concluded, also, that the defense based on section 175 of the Revenue and Taxation Code is not sustainable.

There will be involved in our discussion Ordinance 33 of the city of Arcadia, which was in force in 1932 and until it was superseded by Ordinance number 460, which was adopted in 1941. Proceedings under which the property was assessed and sold to the city were under Ordinance 33; proceedings under which it was deeded to the city in 1942, and was later sold to the defendants, were under Ordinance 460.

In 1932 under Ordinance 33 the delinquent tax list and notice of sale, describing the property and stating other essentials, was required to be published once a week for three successive weeks, not less than 21 days nor more than 28 days prior to the sale, and also mailed to the assessee. It was the duty of the tax collector to make and file an affidavit of the publication together with a copy thereof. If the property was not redeemed it was recorded as automatically sold to the city, and five years later the tax collector was required to execute a deed to the city. After the sale to the city it could be redeemed at any time before it was sold by the city. The ordinance required that notice of a sale by the city be given by publication for at least three successive weeks and by mailing to the last assessee. Secs. 36, 40, 42, 43, 58, 66.

In 1932 the delinquent list was published June 3rd and June 24th noticing a sale for June 30th. The June 3rd publication had a fatally defective description. Tract numbers and tract names were set out in bold type on separate lines, followed by lot numbers, assessment numbers, and amounts of assessment penalties and charges. Lots 14 and 15 were listed under ‘Tract 949’ with 15 other lots. The first three lots listed were in tract 949. The fourth item on the list, in small print, was ‘Santa Anita Riding & Hunt Club, Los Robles de Santa Anita—3’ (lot number); all other items listed under the heading ‘Tract 949’ appeared to be lots in that tract. The only item identified with tract Los Robles de Santa Anita was the one assessed to Santa Anita Riding & Hunt Club. The only tenable conclusion is that the description was completely inadequate and deceptive. The insufficiency of the description was recognized and the June 24th publication described the property correctly. There was no evidence of any other publication and there was no affidavit by the tax collector of any publication of the list. It was shown by defendants' evidence that by a single statement of charges for publication the publisher billed the city and was paid for only the June 3rd and 24th publications. Although the June 24th publication contained a correct description, that single publication was insufficient as to number of publications and time of publication. The 1932 sale to the city was void for insufficiency of publication of the delinquent list and notice of sale. Sawyer v. Berkeley Securities Co., 99 Cal.App. 545, 279 P. 217.

Under Ordinance 460 (secs. 936–999) adopted by the city in 1941, provision was made for the sale of two classes of tax sold but undeeded property, namely, property, that had become delinquent in the previous year and would be sold to the city automatically if no redemption was effected prior to the date of sale and, also, property that had been sold to the city five years or more preceding the enactment of the ordinance (460). The latter class of property, in which lots 14 and 15 were included, was to be offered for sale at public auction, and the owner could redeem at any time before the sale, but if no sale was made at the time noticed the property would be deeded to the city. The ordinance provided that either acceptance of a bid at a sale at auction, or execution of a deed to the city, would end the right of redemption. It also provided for the sale of property at auction after it had been thus deeded to the city. Sec. 903, et seq. The sales were made to defendants under these provisions. There was another class of property, sale of which was authorized by Ordinance 460. This was property that had formerly been deeded to the city at times when the deeds under the existing law did not cut off the right of redemption. Sec. 1000–1001. These sections have no application to our case. The property in question had been sold to the city five years or more previously (1932), but had not been deeded to the city when Ordinance 460 was adopted. Although it was the duty of the tax collector to deed the property to the city in 1937 the deed was not given until 1942.

Under Ordinance 460 five years or more after property had been sold to the city, and remained unredeemed, it could be sold by the city after one publication of notice of sale containing, among other things, a statement of the amount for which each parcel had originally been sold to the city, together with a statement that this was the minimum amount of any acceptable bid. Other requirements of the published notice need not be mentioned. On June 4, 1941, a notice of sale was published once. The deed to the city rests upon this notice. The notice was defective in a vital particular; the amounts of the sales in 1932 were $68.23 for lot 14 and $67.93 for lot 15. These amounts were stated in the notice to be $106.94 for lot 14 and $106.46 for lot 15 as the amounts of acceptable bids. No sale was consummated at the time noticed and in the following year the property was deeded to the city. Notice in compliance with the above requirements of the ordinance was an indispensable prerequisite to termination of the right of redemption either by public sale or by deed of the tax collector to the city. Hall v. Chamberlain, 31 Cal.2d 673, 192 P.2d 759. The notice published in 1941 stated that if a bid was made and accepted at the sale the right of redemption, except by the purchaser, would cease, but that if all delinquent taxes, etc. were not paid by the purchaser within 30 days after the sale the property would be deeded to the city. There was no statement that if a sale was not consummated a deed to the city by the tax collector would terminate the right of redemption. Ordinance 460 gave the tax collector's deed to the city an effect which a deed under the former law would not have had, in that the deed under Ordinance 460 would cut off the right of redemption, whereas in 1932 that right existed until the tax deeded property was sold by the city. Here, the defendants rely upon the deed to the city as an act which terminated the right of redemption, although the taxpayer had had no notice whatever (other than the ordinance itself) that his right of redemption would be cut off in this manner. Under these circumstances the taxpayer was entitled to notice given by the city that the rights which he enjoyed in 1932 had been curtailed in this particular. Also, the ordinance required that a notice be mailed by the tax collector to the last assessee within five days after publication of the notice and at least 21 days prior to the date of sale, which notice could consist either of a copy of the publication or certain other information of the same general tenor. Affidavit was made and filed of the publication of the notice but there was no proof that notice had been given by mailing.

Both the original sale to the city and the deed to the city were void. With respect to each the published notice was fatally defective. We do not deem it necessary to decide whether the sale was invalid for other reasons or whether the deed was ineffectual to terminate the right of redemption for failure to give sufficient notice to the taxpayers of the curtailment of their rights of redemption, or for other claimed procedural defects.

Defendants contend that plaintiffs are barred from asserting invalidity of the deed to the city by section 175 of the Revenue and Taxation Code which reads as follows: ‘Tax deeds: Presumption where action not commenced in year: Manner of prosecution. All deeds heretofore and hereafter issued to the State of California or to any taxing agency, including taxing agencies which have their own system for the levying and collection of taxes, by reason of delinquency of property taxes or assessments levied by any taxing agency or revenue district, shall be conclusively presumed to be valid unless held to be invalid in an appropriate proceeding in a court of competent jurisdiction to determine the validity of said deed commenced within one year after the execution of said deed, or within one year after the effective date of this section, whichever be later. Such proceedings may be prosecuted within the time limits above specified in the manner and subject to the provisions of Sections 3618 to 3636 of this code.’ This section was enacted by Statutes 1945, Chapter 1017, section 1. The within action was not commenced until June 26, 1947. Plaintiffs reply that section 175 was ineffective as a limitation upon their right to attack the proceedings for the reason that they have at all times been in actual possession of the property, and also because they had offered to redeem prior to the enactment of section 175.

The land was unimproved grazing land and was actually used for grazing purposes, part of the time at a cash rental paid to plaintiffs, and the remainder of the time by plaintiffs' tenants who grazed horses thereon without paying rental. Plaintiffs were in possession through a use of the land that was appropriate to its character.

While it has been held that the limitation features of such curative statutes may be validly enacted to bar the right of one out of possession to bring suit to invalidate taxation proceedings, Tannhauser v. Adams, 31 Cal.2d 169, 187 P.2d 716, it is well settled that a statute which purports to limit the time for the commencement of actions by an owner to clear his title of invalid tax proceedings does not operate against him so long as he remains in possession of the land.

In discussing the legislative power to enact statutes of limitation Judge Cooley says in his Constitutional Limitations (8th Ed., Vol. II, pp. 762, 763): ‘All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. Where they relate to property, it seems not to be essential that the adverse claimant should be in actual possession; but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts, but takes no steps to enforce. It has consequently been held that a statute which, after a lapse of five years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be valid as a limitation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims.’ The principle, substantially as stated by Judge Cooley, is found in numerous well considered cases. The Supreme Court of Michigan in Groesbeck v. Seeley, 13 Mich. 329, 342, said: ‘Such laws can only operate on those who are not already in the enjoyment and dominion of their rights. A person who has a lawful right and is actually or constructively in possession can never be required to take active steps against opposing claims. The law does not require any man who is unassailed to pay any attention to unlawful pretenses which are not asserted by possession or suit.’ In Baker v. Kelley, 11 Minn. 480, 489, 11 Gil. 358, it was said: ‘It is not necessary for a party in the enjoyment of his rights to institute any proceedings against an adverse claimant, and to require him to do so would be, in many cases, imposing a grievous and expensive burden. A law requiring a party to take such action is not, nor has it, any analogy to a statute of limitation. Statutes of limitation only operate as an extinguishment of a remedy, and, of course, can have no application to a party who neither seeks nor needs a remedy.’ A concise statement of the rule is found in Dingey v. Paxton, 60 Miss. 1038, 1054, where the court said: ‘One who is in the actual or constructive possession of his land, and who has the right of possession to the property, needs no action to enforce his rights. He is already in the enjoyment of all that the law can give him, and cannot be disturbed in such enjoyment except by that ‘due course of law.”

In Kivlen v. Horvath, 163 La. 901, 113 So. 140, 142: ‘The prescription or pre-emption pleaded is not applicable, and hence is of no benefit to the tax purchaser or to those to whom he has sold, when the owner at the time of the sale continues to remain in actual possession of the property, for his remaining in possession is a protest against the tax title and relieves him of the duty of going out to seek his adversary to attack him.’ Numerous Louisiana cases are cited in support of the statement. They trace to and follow the early holding that the 1898, 1913 and 1921 Constitutions of Louisiana, limiting the time for commencing actions to invalidate tax proceedings, could not have been intended to operate against owners in possession, although the constitutional provisions did not contain such an exception.

In People v. Prime, 199 App.Div. 272, 191 N.Y.S. 643, 645, the court said: ‘It has not yet been held that one who is in actual possession as owner and is enjoying all the property rights he could enjoy if his lawful ownership had been adjudged in court need bring an action or his right would be forfeited by statute.’ So far as we have been able to learn this statement holds good to the present day.

The rule stated by Judge Cooley was recognized in Tannhauser v. Adams, supra, 31 Cal.2d 169, 187 P.2d 716, with citation of numerous supporting authorities. It has been referred to later in Jones v. Bartlett, 94 Cal.App.2d 418, 210 P.2d 903; Union Title Ins. & Trust Co. v. Thorp, 94 Cal.App.2d 421, 210 P.2d 905 and Wilson v. Kipp, 94 Cal.App.2d 426, 210 P.2d 908, although it was not involved for the reason that the parties claiming adversely to the tax titles had not been in possession. See also Barnes v. Kandt, Sup., 134 N.Y.S. 339 and Plant v. Johnson, 208 Ark. 217, 185 S.W.2d 711, citing additional authorities; 61 C.J., sec. 2031, pp. 1423–4, notes 87, 88; 34 Am.Jur., sec. 20, p. 29; sec. 381, p. 296.

For an additional reason sectijon 175 of the Revenue and Taxation Code is ineffectual as a defense to the action. The stipulation of facts contains the following: ‘That on April 20, 1944, plaintiff McCaslin as to lot 14 and plaintiff Pailing as to lot 15 demanded of said city tax collector the right to redeem said property from such taxes and said city tax collector refused to accept redemption * * *. At all times since April 20, 1944, plaintiffs desired and were ready, willing and able to redeem said lots 14 and 15 from such taxes and such redemption was refused on the ground that the right of redemption had been terminated by the deeds to the city on September 28, 1942.’ It was also stipulated that on March 29, 1946, and again on June 15, 1947, plaintiffs made written tender to the tax collector accompanied by sufficient amounts to effect redemption and the same were refused. Plaintiffs' first demand of the right to redeem, and the tax collector's refusal, took place before the adoption of section 175. Although it was not stipulated that the demands and offers in 1944 were accompanied by a sufficient tender of the necessary amount the demands were not refused upon that ground but upon the ground that the right of redemption no longer existed. The refusal to allow redemption in 1944, upon the asserted ground that the time for redemption had expired, coupled with the refusal in 1946, prior to the sale to defendants, to accept the amounts tendered, established beyond doubt that it would have been futile for plaintiffs to make an actual tender of the money in 1944.

The right to redeem had not been terminated by the void deeds in 1942. The wrongful refusal to accept redemption prevented redemptions that would surely have been accomplished but for the refusal. Plaintiffs did pay large amounts to redeem from county tax sales. To allow the city, in these circumstances, to assert as a bar to plaintiffs' actions a statute that was passed more than a year after plaintiffs had offered to redeem would permit the city to take advantage of its own wrong. In Martin v. Barbour, 140 U.S. 634, 11 S.Ct. 944, 949, 35 L.Ed. 546, the property had been sold to the state in 1884 but was erroneously and illegally listed for taxes in 1885 and 1886. These later taxes were paid, the taxpayer assuming, because of the assessments in 1885 and 1886, that the property had not been previously sold to the state. In an action by the owner to clear her title by means of a redemption a purchaser from the state asserted as a defense a statute of limitations requiring actions for the annulment of taxation proceedings and deeds to be commenced within two years after the sale. In rejecting this and other defenses the court said: ‘To permit the sale to the appellant to be confirmed would be to assist the state to take advantage of its own wrong. The right to redeem is a substantial right, and was prevented from being exercised within the statutory period of two years by the dereliction of duty on the part of the officers of the state. * * * No more manifest case for the interposition of a court of equity can be imagined. * * * The appellant took his deed for the land in the same condition in which the state held it, and subject to the same equities and defenses.’ The court referred with approval to the opinion of the Circuit Court in the same case reported in 34 F. page 701.

The reasoning of both courts may well be applied to our cases. In the Martin case redemption was wrongfully prevented within the two year period allowed for bringing suit. In our case redemption was wrongfully prevented before the enactment of section 175, which purports to fix one year as the period within which suit must be brought. Hossom v. City of Long Beach, 83 Cal.App.2d 745, 189 P.2d 787, is decisive of the proposition that upon these facts the present action is not barred by section 175. Following the holding of that case we conclude that since plaintiffs' right of redemption was not terminated by the void deed given the city in 1942, plaintiffs in 1944 did all that was legally required of them to effect redemption of their properties, and that the city wrongfully prevented redemption. The offers to redeem were made and refused prior to the adoption of section 175; the property was no longer subject to legislation thereafter enacted relating to unredeemed property, and section 175 is ineffectual to deprive plaintiffs of the rights they acquired through their offers to redeem.

Several ordinances were adopted between 1938 and 1941 granting to taxpayers rights of redemption for amounts and on terms more favorable than were provided by earlier ordinances. Defendants argue that these ordinances should be construed as terminating the right of redemption in case the taxpayers failed to take advanage of the opportunities to make more favorable redemption. The ordinances cannot be so construed. They did not purport to terminate rights of redemption, but only extended consideration to taxpayers who had been unable to redeem their property.

It is conceded by defendants that the curative acts (Stats.1943, Ch. 458, and Stats.1945, Ch. 1134, Gen.Laws, Acts 8443, 8443a), are inapplicable as against these plaintiffs under the rule announced in Miller v. McKenna, 23 Cal.2d 774, 147 P.2d 531.

The views we have expressed are sufficient to enable the trial court to make a complete disposition of the actions.

The judgments are reversed for further proceedings in accordance with the foregoing opinion.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.