ELBERT v. CLARE

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

ELBERT, Limited v. CLARE et al.*

Civ. 18932.

Decided: June 24, 1952

Arthur E. Briggs, Los Angeles, for appellant. John F. Bender and Gizella M. Allen, Los Angeles, for respondent.

This is an appeal from the judgment. As respondent's brief recites, ‘The action is one to partition real property situate in Los Angeles County, and was brought pursuant to the provisions of Section 752, Code of Civil Procedure.

‘Plaintiff claimed title to the property by treasurer's deed issued by the City Treasurer, San Fernando City, pursuant to foreclosure of street improvement bond issued pursuant to the Improvement Act of 1911 [St.1911, p. 730, as amended].

‘Defendant claimed title to the property by tax deed to the State of California for non-payment of taxes, and tax deed from the State of California to defendant's predecessor in interest, Elizabeth Clare; and by quitclaim deed from said Elizabeth Clare to defendant.

‘Defendant's predecessor in interest paid to the State of California $250.00 for the aforementioned tax deed.

‘Plaintiff made no attack as to the validity of the tax deed, but defendant did at the trial attack the validity of plaintiff's treasurer's deed; and to support that attack, introduced into evidence the following:

‘(a) The street improvement bond, the basis for the treasurer's deed;

‘(b) Request by owner for foreclosure;

‘(c) The notice of sale of property;

‘(d) The certificate of sale to plaintiff's predecessor in interest;

‘(e) The City Treasurer's record book of transactions; and

‘(f) The notice to redeem.

‘The trial court rendered judgment that the defendant was the owner of the property; that plaintiff's treasurer's deed and the certificate of sale upon which said treasurer's deed was based were both void; that plaintiff was the owner of the street improvement bond in question; that the amount due thereon constituted a lien against the property; that the amount paid by defendant's predecessor in interest for the tax deed and the amount due on said bond both constituted liens against the property; and that said liens were on a parity. That the property should be sold by a referee and the proceeds derived therefrom be applied, first, to the payment of referee's fees and expenses; second, to plaintiff and the defendant for their costs of action; third, to the plaintiff and the defendant on their respective liens, prorata; fourth, to the plaintiff and the defendant on their respective liens, pro rata; and fifth, the balance, if any, to the defendant, Catherine Obersmith.

‘Defendant, after rendition of the judgment, moved the trial court to vacate the same and to enter a new and different judgment, which motion was denied; and thereafter, the defendant made her motion for new trial, which was denied.

‘It appears from defendant and appellant's opening brief that defendant's contentions are as follows:

‘1. That plaintiff's amended complaint failed to state a cause of action in that the same did not allege the proportionate interests of plaintiff and defendant.

‘2. That there was a variance between the allegations of the complaint and the evidence offered to support said allegations.

‘3. That there was no evidence as to the amount due and unpaid on the street improvement bond.

‘4. That the trial court was without jurisdiction to render a decree of partition of the real property.

‘5. That plaintiff was not the owner and holder of the street improvement bond lien.

‘We will answer defendant's points using the above as headings.’

The complaint alleged that plaintiff and defendant were tenants in common but the court's determination that the certificate of sale and city treasurer's deed were void terminated the tenancy in common. A lien holder, in the circumstances, and the owner of the fee are not tenants in common and therefore there is nothing to ‘partition’. Respondent's remedy is a renewal of the foreclosure proceedings on the bond for in the within action defendant's right to redeem is foreclosed.

The two cases relied upon by respondent namely, Elbert, Ltd., v. Nolan, 32 Cal.2d 610, 197 P.2d 537, and Burns v. Hiatt, 149 Cal. 617, 87 P. 196, are not decisive of the above question. The former case was not only an action in partition but also for declaratory relief. Partition was denied but the rights of the parties were declared. The Burns v. Hiatt case is an action to quiet title and the decisive question in the within action is not involved.

By reason of the foregoing the other points referred to be appellant require no discussion.

The judgment is reversed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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