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District Court of Appeal, Fourth District, California.



Civ. 4598.

Decided: March 11, 1953

John F. Bender, Compton, and Gizella M. Allen, Los Angeles, for appellant Betty Harless. Edwin M. Campbell, National City, for appellant City of National City. Solon S. Kipp and W. E. Starke, San Diego, for respondent Edward R. Greene.

This is an action for partition of real property in San Diego county, filed on March 13, 1950, and was brought pursuant to the provisions of Section 752 of the Code of Civil Procedure. Plaintiff is the owner of a unforeclosed street improvement bond issued by the City of National City on December 7, 1928, 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 plaintiff's bond or of the last installment due thereon of the last principal coupon attached thereto prior to January 1, 1947. Defendant National City claims title by virtue of a tax deed issued by the tax collector of National City on June 29, 1945. Defendants Edward R. Greene and Georgianna L. Greene claim to have obtained title to the property involved by deed from the record owners thereof. The City of National City filed a cross-complaint alleging ownership and possession of the property and sought a decree that all adverse claims of plaintiff and cross-defendants be determined and that it be declared that cross-defendants had no estate or interest in the property.

The trial court found that the lien of plaintiff's improvement bond terminated as of January 1, 1947, under the provisions of Section 2911 of the Civil Code of the State of California, rendered judgment against the plaintiff and decreed that the Greenes are the owners of the property involved, subject to the liens for taxes of the defendant National City. The claims of the city against defendant Edward R. Greene were not determined.

It is stipulated by the parties that the facts in the above entitled matter and all the law pertaining thereto is identical to the facts and law involved in the case of Harless v. Winter, Cal.App., 254 P.2d 168, and that following the decision herein, the respective claims of Edward R. Greene and the City of National City be referred back to the Superior Court for ‘readjudication’.

In Harless v. Winter, supra, this court passed upon the questions here involved and reference is hereby made to that decision and the cases therein cited. We there held that plaintiff's liens were extinguished by the provisions of Section 2911 of the Civil Code and that the presumption of extinguishment of plaintiff's liens was not overcome by evidence of their nonpayment and nondischarge of record.

The judgment as entered herein is affirmed and the cause remanded to the trial court for determination of the claims of defendants Greene and the City of National City in accordance with the stipulation of the parties.

MUSSELL, Justice.

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

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