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District Court of Appeal, Fourth District, California.


HARLESS v. KIPP et al. (two cases).


LUBERCO, Ltd. v. MILLS et al.

Civ. Nos. 4538, 4539, 4551, 4552 and 4562.*

Decided: March 11, 1953

John F. Bender, Compton and Gizella M. Allen, Los Angeles, for appellant. W. E. Starke and Solon S. Kipp, San Diego, for respondents.

It is stipulated by the parties that insofar as the law is concerned, the facts in each and all of the above entitled matters are identical. Each of said cases is a partition action brought pursuant to Section 752 of the Code of Civil Procedure in respect to real property in San Diego county.

Plaintiff is the owner of unforeclosed street improvement bonds, all issued prior to 1930 by the city treasurer of the city of San Diego pursuant to the Improvement Act of 1911. Streets and Highways Code, § 5000 et seq. More than four years had expired after the due date of said bonds or of the last installment due thereon of the last principal coupon attached thereto prior to the filing of plaintiff's complaints in partition and prior to January 1, 1947.

The defendants are owners of tax deeds acquired from the State of California pursuant to Chapter 7, Part 6, Division 1, Revenue and Taxation Code. Each of said tax deeds was issued subsequent to January 1, 1947, and these actions for partition were all filed in 1949.

The trial court found that the liens of plaintiff's bonds and each of them terminated after January 1, 1947, under the provisions of Section 2911 of the Civil Code of the State of California; that under the terms of said section, the liens of said bonds and each of them are conclusively presumed extinguished and that defendants purchased the property as set forth in the complaint as bona fide purchasers under date of January 7, 1947. From the judgments for defendants which followed, plaintiff appeals.

Defendants contend that they are bona fide purchasers for value; that whether they are bona fide purchasers or not, the liens of plaintiff's bonds terminated as of January 1, 1947; that the court properly entered judgment against plaintiff. Plaintiff's contentions are (1) That the conclusive presumption clause contained in Section 2911 of the Civil Code as to the extinguishment of plaintiff's bonds, under the facts in these cases, is unconstitutional as violating the due process clause of the United States Constitution and (2) That the case of Sipe v. Correa, 38 Cal.2d 131, 238 P.2d 989, supports plaintiff's position. We conclude that plaintiff's contentions cannot be sustained.

In 1945 Section 2911 of the Civil Code was amended to read as follows:

‘A lien is extinguished by the lapse of time within which, under the provisions of the Code of Civil Procedure, either:

‘1. An action can be brought upon the principal obligation, or

‘2. A treasurer, street superintendent or other public official may sell any real property to satisfy a public improvement assessment or any bond issued to represent such assessment and which assessment is secured by a lien upon said real property; whichever is later.

‘Anything to the contrary notwithstanding, any lien heretofore existing or which may hereafter exist upon real property to secure the payment of a public improvement assessment shall be presumed to have been extinguished at the expiration of four years after the due date of such assessment or the last installment thereof, or four years after the date the lien attaches, or on January 1, 1947, whichever is later, or in the event bonds were or shall be issued to represent such assessment, the lien shall then be presumed to have been extinguished at the expiration of four years after the due date of said bonds or of the last installment thereof or of the last principal coupon attached thereto, or on January 1, 1947, whichever is later. The presumptions mentioned in this paragraph shall be conclusive in favor of a bona fide purchaser for value of said property after such dates.’

In Scheas v. Robertson, 38 Cal.2d 119, 126, 238 P.2d 982, the court held that these 1945 enactments come within the legislative prerogative and are not constitutionally objectionable. The validity of Section 2911 of the Civil Code, as amended in 1945, which raises the presumption of the extinguishment of assessment liens not enforced within the established period of limitations was fully considered and established in the cases of Scheas v. Robertson, supra; Sipe v. Correa, 38 Cal.2d 131, 238 P.2d 989, and Anger v. Borden, 38 Cal.2d 136, 238 P.2d 976. In Sipe v. Correa, supra [38 Cal.2d 131, 238 P.2d 991], cited by plaintiff, it was held that:

‘Plaintiff had no vested right in the remedy of partition as a means of enforcing the lien of his bonds issued in 1928 and 1931. That remedy was first provided in 1943 by amendment of section 752 of the Code of Civil Procedure, and was in addition to other remedies previously and then existing. This 1943 amendment conferred no substantive rights, and did not guarantee the perpetual enforceability of any unforeclosed liens existing at that time. As a remedy created solely by statute, and dependent upon the statute alone, it was subject to abolishment by the legislature. Callet v. Alioto, 210 Cal. 65, 67–68, 290 P. 438, and cases cited; Coombes v. Franklin, 213 Cal. 164, 166, 1 P.2d 992 [4 P.2d 157]; cf. Carpenter v. Pacific Mutual Life Insurance Co., 10 Cal.2d 307, 335, 74 P.2d 761. Therefore, the fact that plaintiff could not pursue the remedy of partition as against the state during the years it held title to the property will not sustain a constitutional objection of lack of due process.

‘In any event, plaintiff could have preserved his right to seek partition against the ultimate purchaser by tax deed from the state if he had taken proper steps to perfect his liens and carry them into title before the expiration of the time limits specified in the 1945 legislation creating a 15–/2 months period of grace. September 15, 1945, to January 1, 1947. After default on the bonds, and during the period the state held title to the property, plaintiff, by reason of the parity existing between the bond and tax liens, could have demanded that the county treasurer sell the property. Sts. & Hys. Code, sec. 6500 et seq.; La Mesa Lemon Grove & Spring Valley Irr. Dist. v. Hornbeck, 216 Cal. 730, 732, 17 P.2d 143. Then if plaintiff or some other person had bought the property at such sale, the liens of the bonds would have been carried into title to establish a tenancy in common with the state, as holder of the tax title, under the parity principle declared in Monheit v. Cigna, 28 Cal.2d 19, 27, 168 P.2d 965, 167 A.L.R. 995. As such tenant in common, the plaintiff or other purchaser would have avoided the conclusive presumption of extinction of liens as provided in the 1945 legislation, and would have been in a position to seek partition when the property was acquired from the state by a private purchaser such as defendants Correa.’

In the instant cases, while plaintiff could not bring an action for partition against the State during the years the State held title to the property, she could have preserved her rights by demanding, after default on the bonds and while the State held title to the property, that the city treasurer sell the property and also could have foreclosed the liens on the bonds against the former owners' rights of redemption within four years after maturity of the bonds. She failed to thus preserve her rights and by the provisions of Section 2911 of the Civil Code her bond liens were extinguished and terminated after January 1, 1947. Plaintiff then had no lien rights on a parity with defendants since they were bona fide purchasers. Elbert, Ltd. v. City of Long Beach, 108 Cal.App.2d 463, 465, 239 P.2d 4; City of Los Angeles v. Ganahl, 108 Cal.App.2d 460, 462, 239 P.2d 1. The 1945 legislation embraced a ‘complete revisory plan with reference to the duration and extinction of assessment liens' and provided ‘a definite statute of limitations and a definite period of time upon the expiration of which street improvement liens would be not only unenforceable by foreclosure but also would be presumed to have been extinguished’, Rombotis v. Fink, 89 Cal.App.2d 378, 384, 201 P.2d 588, 591, and when, as here, defendants' tax deeds were issued subsequent to January 1, 1947, defendants were entitled to the conclusive presumption that plaintiff's liens had been extinguished upon the expiration of the statutory period.

Judgments affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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