Litchfield v. Marin County

• Decision Date: 17 February 1955
• Docket Number: No. 15049,15049
• Citation: 130 Cal.App.2d 806,280 P.2d 117
• Court: California Court of Appeals Court of Appeals
• Parties: Irving B. LITCHFIELD and Diana L. Litchfield, his wife, Helen Hyde M. F. Kelly and Janet B. Kelly, his wife, Plaintiffs and Respondents, v. COUNTY OF MARIN, City of San Rafael, George Middleton and Thomas P. Boyd, Administrator of the Estate of Beatriz Michelena Middleton, Deceased, Defendants, George Middleton, Appellant

Page 117

280 P.2d 117

130 Cal.App.2d 806

Irving B. LITCHFIELD and Diana L. Litchfield, his wife, Helen Hyde M. F. Kelly and Janet B. Kelly, his wife, Plaintiffs and Respondents, v. COUNTY OF MARIN, City of San Rafael, George Middleton and Thomas P. Boyd, Administrator of the Estate of Beatriz Michelena Middleton, Deceased, Defendants George Middleton, Appellant

No. 15049.

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

Feb. 17, 1955.

As Modified on Denial of Rehearing March 18, 1955.

Hearing Denied April 13, 1955.

M. Anderson Thomas, San Francisco, Eli D. Langert, San Francisco, for appellant.

Freitas, Freitas & Allen, San Rafael, for respondent.

FINLEY, Justice pro tem.

This is a second appeal in this action which was commenced by respondents for the purpose of quieting their title to certain real property in Marin County purchased at a tax sale. The first appeal is reported in 83 Cal.App.2d 730, 189 P.2d 750. Therein the court reversed a judgment quieting title in plaintiffs, the respondents here, and ordered a new trial on the ground that there was a defect in the proof of chain of title in plaintiffs. This appeal is from the judgment entered upon the new trial, again quieting title in plaintiffs to the property in question.

The facts are not materially disputed. The action concerns some twenty-six lots situate in the city of San Rafael in Marin County, California. Prior to 1928 Beatriz Michelena Middleton and her husband, George Middleton, purchased the lots which were described in a single deed as delineated and designated on a map entitled 'Lands of Forbes Subdivision, No. 3, San Rafael, Marin County, California.' This property was purchased for the purpose of conducting a movie studio thereon and title was taken in the name of Beatriz Michelena Middleton who was an actress and part owner of a motion picture company.

The twenty-six lots so purchased were situate thirteen on each side of a street or roadway designated on the map as Central Avenue. Not all of them, however, faced upon this street or roadway. On the south side lots 21 to 29 inclusive and on the north side lots 30 to 36 inclusive faced thereon. Lots 1 to 4 were double width lots and lay south of and continguous to lots 22 to 29 inclusive and faced upon Colloden Avenue. Lots 56 to 61 inclusive lay north of and contiguous to lots 30 to 36 inclusive and faced upon Forbes Avenue.

Prior to 1928 the Middletons constructed several buildings and made improvements upon lot 1, upon lots 30 and 31, upon lots 56, 57 and 58, and upon lot 61. All other lots, nineteen in number, were unimproved. About midsummer, or toward the end of the year 1930, all the buildings and structures theretofore erected on the lots mentioned were removed so that after 1930 no building improvements remained upon any of them.

Although this property appears on the plat of map of Forbes Subdivision No. 3 as 26 separate lots divided by a street, it was assessed as a unit. In addition the improvements were assessed to the whole property and not to the separate lots upon which they were constructed.

All taxes assessed were paid on all the lots until the fiscal year commencing July 1, 1928, but no payments were made thereafter. The property was sold to the state on June 22, 1929, and deeded to the state on June 23, 1934. It was assessed to Mrs. Middleton until sold to the state.

In 1938 a ten year installment program for the redemption of the properties was begun and it was restored to the tax rolls for 1939 and 1940, but after the initial payment no further installments were paid and it was again dropped from the rolls. Mrs. Middleton died in 1942. Between 1937 and 1941, and prior to her death in 1942, Mrs. Middleton sold ten of the twenty-six lots and these were apparently redeemed by the purchaser. On July 28, 1944, the tax collector received a written bid of $1500 for lots 24 and 25 as one parcel and requested authorization from the State Controller to sell all the lots. Two separate authorizations were issued by the controller, one for the sale of lots 24 and 25 as a unit at a unit price, the other for the sale of the remaining fourteen lots at specific prices which were the least amounts acceptable as bids for the respective lots.

Notice of sale of the two lots to be sold as a unit, namely, 24 and 25, was published in the Fairfax Gazette, a newspaper in Marin County, but not in San Rafael, the city in which the property is located. The publisher of the Gazette executed a certificate of publication but failed to swear to said certificate before a notary. Notice of sale of the remaining fourteen lots was published in the San Rafael Independent.

In connection with the sales the tax collector mailed two notices by registered mail addressed to Beatriz Michelena Middleton, San Rafael, California, and also a so-called 'courtesy notice' to defendant George Middleton, which he admitted receiving before the date that any of the tax sales took place. In 1928 when the property became delinquent and was sold to the state the address of Beatriz Michelena Middleton appeared on the tax roll as 'Warden Tract, S. R.' In 1934 when it was deeded to the state the address appearing on the roll was merely 'San Rafael.' In 1940, after the property had been placed back on the rolls as a result of the redemption program the address appeared 'care of A. P. Black, 114 Sansome Street, San Francisco, California.'

In 1944 the Martin County Tax Collector, on behalf of the state, sold at public auction the lots theretofore deeded to the state. Respondents were the high bidders and received deeds from the state. Thereafter, on November 30, 1944, respondents filed this suit to quiet title, naming as defendants the County of Marin, City of San Rafael, George Middleton and Thomas B. Boyd, administrator of the estate of Beatriz Michelena Middleton, deceased. The County of Marin and City of San Rafael filed disclaimers and Thomas B. Boyd was replaced by appellant George Middleton as administrator of the estate of Beatriz Michelena Middleton, leaving George Middleton, individually, and in such representative capacity, as the only remaining party defendant. The case was tried before the court without a jury and on the facts above summarized the court entered its decree quieting title in plaintiffs. Thereafter a supplemental motion to vacate the decision and a motion for a new trial by defendant were denied, and this appeal followed.

Appellant urges eleven reasons for reversal of the judgment. Stated in general terms the primary question to be answered is whether the curative statutes passed by the Legislature in the year 1943 and following were effective to cure any or all of the claimed irregularities in the process of assessing the property, in deeding it to the state, or in the procedure followed by the tax collector in selling it to respondents as tax delinquent property.

We start with the elementary premise that under the provisions of both the federal and state Constitutions property may not be taken from the individual owner without due process of law. In passing curative statutes the state Legislature cannot rise above this constitutional limitation. It is quite generally conceded that the Legislature may legalize by rescript those acts and omissions which, subject to this limitation, it could have required or omitted to require in passing original legislation. City of Compton v. Boland, 26 Cal.2d 310, 158 P.2d 397; Barrett v. Brown, 26 Cal.2d 328, 158 P.2d 567; Peterson v. Johnson, 39 Cal.2d 745, 249 P.2d 17. This, then, brings us to the question: What in the process of assessment, or collection of a tax, or sale of property for nonpayment thereof, is jurisdictional as an element of due process and therefore mandatory, and what is nonjurisdictional and therefore subject to legislative regulation? In the case of Miller v. McKenna, 23 Cal.2d 774, at page 782, 147 P.2d 531, the court lists four jurisdictional requisites of due process not subject to waiver by curative statutes. Respondents contend that the list covers all jurisdictional requisites; that there are no others. Appellant as stoutly maintains that the list is not all-inclusive and points to the use by the court of the word 'among' in Miller v. McKenna, supra, in the following discussion appearing in 23 Cal.2d on page 782, 147 P.2d on page 536: 'But the Legislature cannot cure defects which are sometimes termed jurisdictional. Among the jurisdictional requisites are (a) a duly constituted taxing authority; (b) property to be taxed within the territorial jurisdiction of the taxing body; (c) property or subject matter legally subject to the tax; and (d) sufficient notice and opportunity for hearing to constitute compliance with due process. [Citing cases.]' (Emphasis added.)

In further support of the contention that this list is not all-inclusive appellant cites Ramish v. Hartwell, 126 Cal. 443, 58 P. 920, for the proposition that in addition to the four jurisdictional requisites listed in Miller v. McKenna, supra, there are two others, viz.: 'the listing or assessment of the property, a levy of the tax, some notice of its delinquency, and that the property will be sold therefor * * *'. 126 Cal. at page 448, 58 P. at page 922. This seems to be an enumeration of three rather than two requirements. Ramish v. Hartwell, supra, is cited by the court in Miller v. McKenna, supra, so it must be assumed that the court in the latter, which is also a much later pronouncement by our Supreme Court, had in mind the statement just quoted from Ramish v. Hartwell, supra, and either upon further consideration concluded that all the factors therein mentioned were not essentially jurisdictional or that the four requisites enumerated in Miller v. McKenna, supra, were sufficiently broad to encompass them.

It seems obvious from much of the discussion appearing in his brief that appellant is confusing use of the word...