Jones v. United States, 913-59.

• Decision Date: 23 December 1959
• Docket Number: No. 913-59.,913-59.
• Citation: 179 F. Supp. 456
• Court: U.S. District Court — Southern District of California
• Parties: Robert E. JONES, Plaintiff, v. UNITED STATES of America, Defendant.

179 F. Supp. 456

Robert E. JONES, Plaintiff, v. UNITED STATES of America, Defendant.

No. 913-59.

United States District Court S. D. California, Central Division.

December 23, 1959.

Newton E. Anderson, Eldon V. McPharlin and Robert C. Haase, Jr., Los Angeles, Cal., for plaintiff.

Laughlin E. Waters, U. S. Atty., Edward R. McHale, Asst. U. S. Atty., Eugene N. Sherman, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

BYRNE, District Judge.

This is an action to quiet title to realty. Plaintiff is an agent acting on behalf of the Royal Indemnity Company (hereinafter RIC). In 1953 one Selma Fisher executed a deed of trust of the property in question to the California Bank as trustee for the Fisherman and Merchants Bank, as security for the payment of a promissory note. Thereafter Selma Fisher, doing business as Fisher Sheet Metal Works, applied for several contract bonds with RIC bonding company, real party plaintiff in this action, which bonds were then defaulted upon, resulting in the payment by RIC of $49,970.93.

Since Miss Fisher had agreed to indemnify RIC for such losses, in December, 1953, she executed a deed of trust of this property to the Title Insurance and Trust Company as trustee for RIC. Thereafter federal tax liens were filed against Selma Fisher and John Fisher, affecting the same property.

In January, 1955, Selma Fisher defaulted on the promissory note to the Fisherman & Merchants Bank. A sale was ordered of the property in question by trustee for that bank, at which the property was purchased for $8,022.64, the highest bid, by plaintiff, acting as agent for, and to protect the interests of, RIC.

Plaintiff, therefore, now has the property in question, but the Government has a lien on it. Plaintiff's position is that RIC as next lienor to the Fisherman and Merchants Bank is entitled to any excess sum¹ paid to that bank up to its right to the $49,022.84 owed it by Fisher, whose debt has since been discharged in bankruptcy. Since the Government is the junior lienor, contends plaintiff, its claim against the property ought to be forever barred by this Court.

The Government moves to dismiss plaintiff's amended complaint, on the grounds that the applicable statutes confer no jurisdiction on this Court to entertain an action to quiet title against the United States.

Section 2410(a) of Title 28 provides in part:

"The United States may be named a party in any civil action or suit in any district court * * * or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien."

This Circuit has held, in Wells v. Long, 9 Cir., 162 F.2d 842, that the purpose of this section was not to confer jurisdiction on the District Courts to entertain these cases, but rather to waive the sovereign immunity of the United States in such cases where another independent ground of jurisdiction already exists. The Wells case was followed by Seattle Association of Credit Men v. United States, 9 Cir., 240 F.2d 906, where a like result was reached.

Thus, although § 2410 is sufficient to relieve the plaintiff against the bar of sovereign immunity, plaintiff must find another ground of jurisdiction. Accor...