HENDERSHOTT v. SHIPMAN

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

HENDERSHOTT et al. v. SHIPMAN et al.

Civ. 17415.

Decided: September 18, 1950

Charles Murstein, Los Angeles, for appellants. John F. Bender and Gizella M. Allen, Los Angeles, for respondents.

Action to quiet title to real property. In the complaint it is alleged that plaintiffs are the owners and entitled to possession of certain real property in Los Angeles; and that defendants claim some right, title or interest in the property adverse to plaintiffs but the defendants have no right, title or interest in any part thereof.

The defendants in their answer deny generally and specifically the allegations of the complaint to the effect that plaintiffs are the owners and entitled to the possession of the property; they admit that they claim the right as owners in fee of the property; they deny that they have no right or title or interest in the property, but on the contrary they allege that the plaintiffs have no right, title or interest in any part thereof. As a further defense they allege that the claims of plaintiffs to the property are without right and the said claims are invalid and void; that any proceedings upon which plaintiffs' claims are based are invalid and void and are barred by the statutes of limitations. They pray that plaintiffs take nothing by the complaint; that the complaint be dismissed; that the defendants be awarded costs, and such other relief as the court deems proper.

The court found that it is not true that plaintiffs are the owners of the property and it is not true that plaintiffs are entitled to possession thereof; that plaintiffs are the owners of certificate of sale No. 3322 issued by the treasurer of the City of Los Angeles on May 31, 1946, following the foreclosure of a street improvement bond which was issued on August 31, 1928, by said treasurer pursuant to the Improvement Act of 1911; that the treasurer's deed which was issued by said treasurer on July 7, 1947, was issued without there first having been filed with the treasurer an affidavit showing service upon the owner of the property of any notice in respect thereto; that at no time was any affidavit filed with the treasurer stating that a redemption notice which stated any of the matters specified in section 6550 of the Streets and Highways Code was at any time served upon the owner of the property or an agent of the owner; that defendant Mr. Shipman is the owner of the property.

The court adjudged that the plaintiffs are owners of said certificate of sale; that ‘said Certificate, and the amount due thereon, is a valid and subsisting lien upon’ said real property, but plaintiffs are not entitled to a judgment quieting their title to the property; that said treasurer's deed is void; that the defendants Mr. and Mrs. Shipman recover their costs.

Defendants appeal from the judgment and from that portion of the judgment which adjudges that plaintiffs are owners of the certificate of sale, and that ‘said Certificate, and the amount due thereon, is a valid and subsisting lien upon’ said real property. The appeal is upon the judgment roll.

Appellants contend that it was error to include in the judgment the provision that plaintiffs are the owners of the certificate of sale and that ‘said Certificate, and the amount due thereon, is a valid and subsisting lien upon’ the property. It appears that appellants (defendants) did not seek affirmative relief by cross-complaint or otherwise. The issue herein was whether plaintiffs were entitled to a judgment quieting their alleged title to the property. They based their claim of title upon the treasurer's deed. The court found that plaintiffs are not the owners of the property and adjudged that the treasurer's deed is void. There was no issue herein as to the condition of appellant's title. The certificate of sale, which was issued subject to the right of redemption by the appellants, could not have been a proper basis for an action by plaintiffs to quiet title to the property. ‘In an action to quiet title, the plaintiff must recover upon the strength of his own title and not upon the weakness of the defendant's claim.’ Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814, 825, 129 P.2d 383, 389. In Warden v. Harker, 212 Cal. 775, 300 P. 965, 966, the plaintiff claimed title through a treasurer's deed given after a sale under the provisions of the Street Improvement Act. The defendant therein contested the title of plaintiff on the ground that the sale proceedings and the deed were invalid. The court therein so found and rendered judgment for defendant, but the plaintiff contended on appeal that the court erred in failing to find that plaintiff had a lien upon the property for the amount of the assessment which he had paid at the time of sale. In that case the court said: ‘Plaintiff in his complaint alleged that he was the owner of the property; and he did not amend to claim a lien, nor did he make the point in presenting his case. At all times he stood on his claim of title, and refused the tender made by defendant both before and during the trial, of the amount expended by plaintiff, which sum now forms the basis of his contention on this appeal. In addition, it seems obvious that, where the whole proceedings are invalid, no lien attaches to the property sold.’ In District Bond Co. v. Pollack, 19 Cal.2d 304, 121 P.2d 7, the District Bond Company sought to foreclose a street improvement bond. The respondent therein, in a complaint in intervention, sought to quiet his alleged title to the property. The appellant, who was named as a defendant in intervention, denied respondent's ownership of the property and asked that title be quieted in his favor as against respondent. The trial court therein decreed that title to the property should be quieted in appellant's favor and that respondent should have a lien against the property for a certain sum which he had expended in payment of a sewer bond and taxes. The appellant contended on appeal that it was error to include in the judgment the provision that respondent had a lien against the property. The reviewing court said, 19 Cal.2d at page 307, 121 P.2d at page 9: ‘Appellant contends that the relief afforded respondent was outside the issues raised by the pleadings. Appellant, however, in his answer affirmatively requested the trial court to quiet title to the property in his favor. [Citing cases.] A party who requests equitable relief must satisfy the equitable claims interposed by the opposing party.’ In Roma v. Elbert, Ltd., 73 Cal.App.2d 338, 166 P.2d 294, plaintiffs sought to quiet their title to real property but the judgment quieted the defendant's title against the claims of plaintiffs and did not require defendant to pay plaintiffs a certain sum which plaintiffs had paid for taxes. On appeal by plainiffs it was held that the defendant should have been required to reimburse plaintiffs (appellants) for the amount paid by them for taxes. The court said, 73 Cal.App.2d at page 341, 166 P.2d at page 296: ‘Respondent [defendant] might have rested on the invalidity of appellants' title and defeated the action without the necessity of repaying the taxes. [Citing case.] It was not content to resist appellants' action but in its answer respondent denied their title and affirmatively alleged its own title as having been acquired by reason of the separate foreclosure of two street improvement bonds. The answer prayed for a decree that respondent was the owner of the property and that appellants had no right, title or interest therein. Evidence was offered in support of said allegations, following which the court made findings in accordance therewith and rendered a judgment quieting respondent's title against all claims of appellants. * * * Where equitable relief is sought by a property owner against a purchaser at a tax sale the party seeking relief must do equity, and the repayment of the amount of the taxes paid by the purchaser at the tax sale does no more than to satisfy the equitable requirement. This rule obtains where the property owner as plaintiff initiates an action seeking relief against the tax deed [citing cases], or where the holder of a tax deed is plaintiff and the defendant denies the validity of the tax title and seeks affirmative relief against the same.’ As above stated, in the present case defendant did not ask for affirmative relief. There was no allegation in the pleadings regarding a lien or any payments by plaintiffs or anyone upon an assessment, or for interest, penalties, or expenses. There was no finding that plaintiff or anyone had paid any amount in connection with the street bond assessment. The provision of the judgment that the certificate of sale and the amount due thereon constituted a valid lien upon the property was an adjudication that the amount stated in the certificate was in fact the amount due upon the bond as principal, interest, penalties and expenses. As above stated, there was no issue in this quiet title action as to whether the title of appellants was clear or encumbered.

It might be argued, however, that, under the provisions of section 6572 of the Streets and Highways Code, it was proper to include in the judgment a provision that the certificate of sale and the amount due thereon constituted a lien upon the property. That section provides: ‘If any sale of lands for delinquency in the payment of principal or interest of any bond is held illegal or invalid, or any deed issued to the purchaser at any such sale is held illegal or invalid for any reason whatsoever, the lands described in the bond shall not be released from the lien of the assessment but shall be and remain subject to further proceedings for the enforcement of the assessment, and the further proceedings may include additional sales or the issuance of new deeds. In any event, however, the lien of the assessment shall continue only until a valid sale is had and a valid deed issued, or until the expiration of two years after such sale or deed is held illegal or invalid, whichever is sooner.’ It is to be noted that said section states that ‘the lien of the assessment’ shall continue after a deed is held to be void. It does not state that the certificate of sale or the amount stated therein is a lien which shall continue after the deed is held to be void. The lien of the assessment, mentioned in the section, is not necessarily the certificate of sale and the amount stated therein—or the amount stated therein. It might be shown, in a trial of the issue as to whether the amount stated in the certificate was the amount due on the bond, that the amount stated in the certificate is not correct. A redemption of the property, under the lien stated in the judgment, namely, the certificate of sale and the amount due thereon, may be made by paying ‘the following, together with interest at the rate of 1 per cent a month from the date of sale’: purchase money and costs, the moneys paid for taxes, assessments or liens, and the fee for recording the certificate of sale. See Streets and Highways Code, sec. 6531. Prior to a sale the amount required to remove the ‘lien of the assessment’, referred to in said section 6572, and cancel the bond, is the unpaid principal, the interest thereon compounded semiannually at the rate named in the bond, the penalty on delinquent instalments, and the cost of publication. See Streets and Highways Code, sec. 6508. The penalty on delinquent instalments prior to sale is 1 per cent a month of the total amount of delinquent instalments and interest. Streets and Highways Code, sec. 6442. It therefore appears that the amount required to remove the lien mentioned in the judgment is more than the amount required to remove ‘the lien of the assessment’ prior to the sale.

Furthermore, it is to be noted that said section 6572, as amended in 1945, provides that: ‘In any event, however, the lien of the assessment shall continue only until a valid sale is had and a valid deed issued, or until the expiration of two years after such sale or deed is held illegal or invalid, whichever is sooner.’ It is also to be noted that there is no limit of time stated in the judgment as to the duration of the lien. Even if a provision regarding a lien should have been included in the judgment, the provision should have limited the duration of the lien to said period of two years.

The judgment should not have included the provision regarding a lien or the provision that the plaintiffs are owners of the certificate of sale. The judgment should be modified by striking out those provisions. It is ordered that the judgment be and it is modified as follows: (1) By striking from the second paragraph thereof the following, ‘plaintiffs are the owners of Certificate of Sale No. 3322, issued by the City Treasurer of the City of Los Angeles, on May 31, 1946, following the foreclosure of Street Improvement Bond No. 22, Series 1, for the improvement of Columbus Avenue (and portions of other streets), which said bond was issued on August 31, 1928, by the City Treasurer of the City of Los Angeles, pursuant to the provisions of the Improvement Act of 1911. That said Certificate, and the amount due thereon, is a valid and subsisting lien upon the real property as described in said certificate, and as more particularly described as follows:

‘Lot 239 of Tract No. 2800, as per map recorded in Book 28, Pages 53 and 54 of Maps, Records of Los Angeles County, but that’; and (2) By adding at the end of the second paragraph thereof, after the word ‘property,’ the following: ‘particularly described as follows: Lot 239 of Tract No. 2800, as per map recorded in Book 28, Pages 53 and 54 of Maps, Records of Los Angeles County, California.’

As so modified the judgment is affirmed. Appellants to recover costs on appeal.

WOOD, Justice.

SHINN, P. J., and VALLÉE, J., concur.

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