ELBERT v. GROSS

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

ELBERT, Ltd. v. GROSS et al.*

Civ. 18922.

Decided: May 12, 1952

Myron J. Glauber, and Alfred L. Armstrong, Los Angeles, for appellant. John F. Bender, and Gizella M. Allen, Los Angeles, for respondent.

Respondent, as plaintiff below, on October 14, 1949, instituted this action for partition of a vacant lot basing its right to partition on a City Treasurer's deed issued to it as a result of the foreclosure of a street improvement bond issued on August 14, 1925, under the provisions of the Improvement Act of 1911. St.1911, p. 730. The appellant as defendant not only answered the complaint but filed a cross-complaint to quiet the title averring that he acquired title to the property on December 11, 1945, by deed from the state of California, which in turn had acquired title by a tax deed issued to it in 1937 for delinquent taxes for the fiscal year 1931–32. He also averred that, through assignment, he held a City Treasurer's Certificate of Sale of the lot which had issued pursuant to the foreclosure of a bond originally issued on August 8, 1928, under the Improvement Act of 1911.

The record in this case does not disclose when the two bonds mentioned above became delinquent or when the proceedings to foreclose them were instituted.

In the court below appellant as defendant and cross-complainant contended that the City Treasurer's deed to plaintiff was invalid because no notice was served upon the owner of the lot or his agent as required by Section 6550 of the Streets and Highways Code. That such a notice was unnecessary was ruled by us in Elbert, Ltd., v. de Gaffey, 108 Cal.App.2d 388, 238 P.2d 1044. In the case before us no other ground of invalidity is raised. Accordingly, we do not have before us for decision questions of the character such as were presented to us in Stafford v. Realty Bond Service Corp., Cal.App., 242 P.2d 936.

The only other ground for reversal urged upon us is that the court below erred in holding that the City Treasurer's deed to respondent extinguished the lien appellant had under his own City Treasurer's Certificate of Sale. That the court did not err in so holding is plain as, by the express provisions of the statute, special assessment liens ‘shall have priority over all special assessment liens which may thereafter be created against the said property.’ Sec. 23, Improvement Act of 1911, as amended, St.1927, p. 1407. See also Cullinan v. Grey, 18 Cal.2d 247, 115 P.2d 460.

It follows from what we have said that the judgment must be and it is affirmed.

HANSON, Justice pro tem.

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