Laubisch v. Roberdo

• Decision Date: 07 December 1954
• Citation: 43 Cal.2d 702,277 P.2d 9
• Court: California Supreme Court
• Parties: T. C. LAUBISCH, Plaintiff, Cross-Defendant, and Respondent, v. Mabel ROBERDO, Lily A. Cowan, Defendants, Jennie Wentworth, Defendant and Cross-Complainant, Lily A. Cowan, Appellant. L. A. 22513.

Page 9

277 P.2d 9

43 Cal.2d 702

T. C. LAUBISCH, Plaintiff, Cross-Defendant, and Respondent, v. Mabel ROBERDO, Lily A. Cowan, Defendants Jennie Wentworth, Defendant and Cross-Complainant Lily A. Cowan, Appellant.

L. A. 22513.

Supreme Court of California, In Bank.

Dec. 7, 1954.

Ernest W. Pitney, Los Angeles, for appellant.

Glen Behymer, Los Angeles, and Robt. E. Rosskopf, Beverly Hills, for respondent.

EDMONDS, Justice.

T. C. Laubisch, the purchaser of certain real property at a sale held pursuant to a judgment foreclosing a mechanic's lien, sued to quiet his title and recover damages and rent. Only Lily A. Cowan has appealed from the judgment in his favor.

At the trial the parties stipulated as follows:

On January 27, 1941, a decree was entered ordering the sale of the property to satisfy a mechanic's lien. This decree directed that the sale be made by a named commissioner and its validity is not questioned. No further action was taken until January 16, 1946, when the judgment creditor directed the commissioner appointed in the decree of foreclosure to proceed with the sale. A writ of enforcement was issued on February 7th or 8th of that year, and on March 5th the property was sold to Laubisch. There was no redemption within one year and the commissioner's deed to Laubisch was recorded on March 7, 1947.

Before the foreclosure sale, Mabel Roberdo held the fee title to the property through a series of conveyances from the debtor in the foreclosure decree. After the present action was begun, she executed a deed to the property to Jennie Wentworth, who in turn conveyed her interest to Mrs. Cowan. All of these persons were made defendants in Laubisch's action to quiet his title to the property. As to Mabel Roberdo, the action was dismissed in open court. Jennie Wentworth did not appeal from the judgment against her.

By her answer, Mrs. Cowan denied that Laubisch was the owner of the property and admitted that she claimed an interest in it adversely to him. As affirmative defenses, she pleaded ownership of the property by adverse possession and that Laubisch's action is barred by laches.

The court found that the foreclosure sale, duly and regularly conducted under the writ of enforcement, was timely held, and that Laubisch has been the owner of the property since March 7, 1947. It also found that Mrs. Cowan has failed to establish the elements of ownership by adverse possession. A further finding was that neither Laubisch nor his predecessor in interest was guilty of laches.

Mrs. Cowan challenges the findings as to her lack of title by adverse possession and the regularity of the sale upon the ground that they are without evidentiary support. Furthermore, she asserts, Laubisch is barred by laches fom claiming any interest in the property. Laubisch takes the position that the evidence supports the findings in all respects. In any event, he argues, Mrs. Cowan may not, under the pleadings in this suit, question the validity of the foreclosure sale.

The record does not require a finding that Mrs. Cowan acquired ownership by adverse possession. To establish such title, the claimant must show: (1) his possession by actual occupation under such circumstances as to constitute reasonable notice to the owner; (2) his possession hostile to the owner's title; (3) his claim to the property as his own, either under color of title or claim of right; (4) his continuous and uninterrupted possession for five years; (5) the payment by him of all of the taxes levied and assessed upon the property during the period. 'Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession.' West v. Evans, 29 Cal.2d 414, 417, 175 P.2d 219, 220.

In at least two respects Mrs. Cowan failed to establish title by adverse possession. To be considered hostile, the acts relied upon must operate as an invasion of the right of the party against whom they are asserted. City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 133, 287 P. 475. The situation here is analogous to a mortgagor-mortgagee relationship. A mortgagor or his grantee in possession of mortgaged property may not set up the statute of limitations against the mortgagee; the possession of the mortgagor is presumed to be amicable and in subordination to the mortgage. Comstock v. Finn, 13 Cal.App.2d 151, 157, 56 P.2d 957; Baumgarten v. Mitchell, 10 Cal.App. 48, 51, 101 P. 43. The bare fact of foreclosure does not alter the situation. Knowlton v. Coye, 76 N.D. 478, 484, 37 N.W.2d 343. Moreover, "(t)he statute of limitations does not commence running against a purchaser of land at a sheriff's sale until the sheriff's deed has been delivered". Leonard v. Flynn, 89 Cal. 535, 542, 26 P. 1097, 1098; Jefferson v. Wendt, 51 Cal. 573, 575; Comstock v. Finn, supra, 13 Cal.App.2d at page 157, 56 P.2d 957.

Mrs. Cowan's possession was not hostile to the interests of the judgment creditor, who had only a lien upon the land, nor adverse to Laubisch until March, 1947, when he obtained the commissioner's deed. Furthermore, the evidence shows that one Hamilton occupied the premises, as a tenant of Laubisch, from April until October, 1947, a sufficient interruption of the running of the five-year period commencing August, 1942, to prevent the acquisition of title by adverse possession. Mrs. Cowan also failed to prove that she paid the taxes for the necessary period. There is no evidence as to who paid the taxes for 1945, and it is stipulated that Laubisch paid them for 1947. In these circumstances it is clear that there is substantial evidence to support the trial court's determination that no title by adverse possession was acquired.

Mrs. Cowan next urges that the sale to Laubisch was void because conducted more than five years from the entry of the decree of foreclosure. One ground relied upon is that the judgment constituted a lien upon the real property which expired five years from the date of entry. She maintains that the right to have the property sold was dependent upon the existence of a lien acquired pursuant to section 674 of the Code of Civil Procedure. Under that statute, upon recordation of an abstract of judgment with the county recorder, the judgment becomes a lien upon all real property of the judgment debtor, not exempt from execution, located within the county. Its purpose is to give the judgment creditor immediate security for the subsequent enforcement of the judgment. See Menges v. Robinson, 132 Cal.App. 647, 651, 23 P.2d 526. The lien continues 'for five years from the date of the entry of the judgment or decree unless the enforcement of the judgment or decree is stayed on appeal.'

Laubisch's title, however, was not obtained by the enforcement of the statutory judgment lien; his rights are based upon a sale directed by the judgment itself, to enforce a lien of an entirely different origin. A similar situation existed in Lone Jack Mining Co. v. Megginson, 9 Cir., 82 F. 89, a case arising under California law. There the purchaser at a sale to foreclose a mortgage sued to quiet its title. The record showed that the sale was conducted more than five years from the entry of judgment, although an order of sale was obtained before that time. Claimants of the mortgagor contended that the sale was void because of the expiration of the period provided for a judgment lien. The court said: 'The lien which was enforced upon the foreclosure sale was not a statutory judgment lien, but was the contract lien of the mortgage * * *. The complainant's title rests upon the mortgage lien, and upon the foreclosure sale made in pursuance thereof, and the rights of the parties are those of the mortgagors and the mortgagee.' 82 F. at page 93. Similarly, Laubisch's title does not stem from a judgment lien authorized by section 674, but rests upon the mechanic's lien and the foreclosure sale made to enforce it.

Another ground for asserting that the sale was void is that the writ of enforcement, pursuant to which the sale was made, was ineffectual to authorize the commissioner to transact the sale, having been issued more than five years after the entry of judgment in the foreclosure suit and without an order of the court made after notice and motion.

Section 681 of the Code of Civil Procedure provides: 'The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. If, after the entry of the judgment, the issuing of execution thereon is stayed or enjoined by any judgment or order of court, or by operation of law, the time during which it is so stayed or enjoined must be excluded from the computation of the five years within which execution may issue.' Section 684 of that code provides that 'when the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment * * *.' The following section, in part, provides: 'In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion'.

The quoted sections of the Code of Civil Procedure are applicable to proceedings in an action to foreclose a mechanic's lien. Code Civ.Proc. sec. 1201. 1; Withington v. Shay, 47 Cal.App.2d 68, 73, 117 P.2d 415, 119 P.2d 1. Such a lien is in the nature of a mortgage and an action for its foreclosure resembles a proceeding to foreclose a mortgage; the same procedural and substantive principles are generally appropriate...