McKenna v. Ping

• Decision Date: 31 July 1951
• Citation: 105 Cal.App.2d 752,234 P.2d 246
• Court: California Court of Appeals Court of Appeals
• Parties: McKENNA v. PING et al. Civ. 17945.

Page 246

234 P.2d 246

105 Cal.App.2d 752

McKENNA v. PING et al.

Civ. 17945.

District Court of Appeal, Second District, Division 3, California.

July 31, 1951.

Rehearing Denied Aug. 24, 1951.

Hearing Denied Sept. 27, 1951.

Catherine A. McKenna, in pro. per.

Ralph Burns, Huntington Park, for respondent.

PARKER WOOD, Justice.

In this action to quiet title to real property, plaintiff based her claim of title upon a quitclaim deed, dated May 17, 1942, from Herman A. Paulk and Mary Agnes Paulk, husband and wife. Defendants Peter D. Miller and Spero Kraleff filed a cross-complaint to quiet title, basing their claim of title on a tax deed dated May 13, 1944, from the Tax Collector of Los Angeles County to Peter D. Miller and Spero Kraleff. After the filing of the cross-complaint and before the trial, Kraleff quitclaimed to Miller all his interest in said property, which quitclaim deed was dated September 27, 1945. It was adjudged that defendant and cross-complainant Miller is the owner of the real property, and that plaintiff and cross-defendant has no right, title or interest therein. Plaintiff appeals.

The property was assessed for taxation in 1932. The taxes levied under that assessment ($148.33) were not paid, and on September 2, 1933, the property was sold to the state by operation of law for $160.68, which amount included the taxes, penalties, and costs. On July 1, 1938, the property not having been redeemed, the Tax Collector of Los Angeles County conveyed the property by grant deed to the State of California.

In 1932, the property was owned by George W. Bahe. In 1937, he conveyed the property to Herman A. Paulk. As above stated, on May 17, 1942, Mr. and Mrs. Paulk quitclaimed the property to plaintiff. Mr. Paulk testified that he quitclaimed the property to plaintiff in satisfaction of a debt of approximately $100 or $150 that he owed her on some legal matters.

Appellant contends that the deed to the state, dated July 1, 1938, was void because: (1) it was executed less than five years after the sale to the state on September 2, 1933; (2) the notice stated that the property would be deeded to the state if not redeemed on or before July 1, 1938--thereby the 5-year period of redemption was shortened 64 days; (3) and the property was not sold at public auction as required by section 3771a of the Political Code. The fact that the sale to the state was made on July 1, 1938, (before the expiration of five calendar years from September 2, 1933), did not make the deed void. A statute enacted in 1933, Stats.1933, p. 1520, authorized such a sale on July 1, 1938. Markowitz v. Carpenter, 94 Cal.App.2d 667, 672, 211 P.2d 617; Elbert, Ltd. v. Nolan, 87 Cal.App.2d 24, 26, 27, 196 P.2d 88. Appellant does not cite transcript references in support of her assertion that the notice of sale recited that the property would be deeded to the state on July 1, 1938, or in support of her assertion that the property was not sold at public auction. We do not find any evidence to the effect that such a notice was given or that the property was not sold at public auction. A tax deed to the state is primary evidence that 'At a proper time and place the property was sold as prescribed by law, and by the proper officer'. Pol. Code, sec. 3786, subd. 5, now in substance Revenue & Taxation Code, sec. 3517. In Bell v. Towns, 95 Cal.App.2d 398, 213 P.2d 73, it was contended that tax deeds were void for failure to recite therein that the property was sold to the highest bidder. It was said therein, 95 Cal.App.2d at page 400, 213 P.2d at page 75:

'None of these alleged procedural errors or defects, if any in fact exists, is jurisdictional. If any occurred it is such as has been cured by the Curative Acts. * * *

'A tax deed to the State is prima facie evidence of the regularity of certain of the tax proceedings and conclusive as to all others from the levy of the assessment to the execution of the deed.'

The Curative or Tax Validation Act of 1943, St.1943, p. 1993, is applicable to the present case. The tax validation acts apply to all tax proceedings consummated prior to the respective effective dates of the acts. City of San Diego v. Alpha Securities Corp., 99 Cal.App.2d 246, 250, 221 P.2d 770.

The present action was commenced on May 7, 1945. Defendant alleged in his answer that the plaintiff's cause of action against the tax title of defendant is barred by the provisions of section 3521 of the Revenue and Taxation Code. That section provides: 'A proceeding based on an alleged invalidity or irregularity of any deed to the State for taxes or of any proceedings leading up to the deed can only be commenced within one year after the date of recording of the deed to the State in the county recorder's office or within one year after June 1, 1941, whichever is later.' As above shown, the present proceeding is based on the alleged invalidity of the deed to the state dated July 1, 1938. It therefore appears that this action was not commenced within one year after June 1, 1941, but was commenced about four years after that date. Appellant argues, however, to the effect that her action was not barred by the provisions of section 3521, since defendant claims title under a tax deed dated May 13, 1944, and since her action herein was filed within one year thereafter, namely, on May 7, 1945. It is to be noted that the deed referred to in said section is the deed 'to the State.' Appellant argues further to the effect that since she was in possession of the property her action was not barred by the provisions of said section. She asserts that at the time she commenced her action she was in possession of the property through her tenants. It appears to be a general rule that a limitation statute, with respect to an action to quiet title, does not run against one in possession of land, and a person in possession of land cannot be required under penalty of forfeiture to bring an action against one claiming an adverse interest or title to such property. See Tannhauser v. Adams, 31 Cal.2d 169, 175, 187 P.2d 716, 5 A.L.R.2d 1015. '[T]he rule of inapplicability of statutory limitation has been said to apply as to owners who because of their possession could not be assumed to have actual knowledge of claims of adverse interest by persons not in possession.' McCaslin v. Hamblen, 37 Cal.2d 196, 231 P.2d 1, 3. In the case last cited it was said: 'Assuming that the rule might have application in a case where the plaintiff is the original tax-delinquent owner in undisturbed possession, it would seem right to conclude that a generalization applicable merely to 'owners in possession' is too broad. The plaintiffs are not the original tax-delinquent owners. They took conveyances of the parcels from the tax-delinquent owner after sale to the city and subject to the city's rights.'

In the present case, appellant was not the original tax-delinquent owner. The owner in 1932, when the taxes became delinquent, was Mr. Bahe. He conveyed the property to Mr. Paulk in 1937. The property was deeded to the state in 1938, and Mr. Paulk quitclaimed the property to appellant on May 17, 1942. It thus appears that appellant took the quitclaim deed from a grantee of the original tax-delinquent owner about four years after it had been deeded to the state and subject to the state's rights. Mr. Paulk, the grantee of the original tax-delinquent owner, was in possession of the property for approximately a year after June 1, 1941 (14 days less...