Philbrick v. Huff

• Decision Date: 30 July 1976
• Citation: 131 Cal.Rptr. 733,60 Cal.App.3d 633
• Court: California Court of Appeals Court of Appeals
• Parties: Jerry Douglas PHILBRICK, as Administrator with the Will Annexed of the Estate of Donald Chase Philbrick, Deceased, Plaintiff, Cross-Defendant and Appellant, v. Edmond HUFF et al., Defendants, Cross-Complainants and Respondents. Civ. 37156.

Page 733

131 Cal.Rptr. 733

60 Cal.App.3d 633

Jerry Douglas PHILBRICK, as Administrator with the Will Annexed of the Estate of Donald Chase Philbrick, Deceased, Plaintiff, Cross-Defendant and Appellant, v. Edmond HUFF et al., Defendants, Cross-Complainants and Respondents.

Civ. 37156.

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

July 30, 1976.

David Terreo, Oakland, for appellant.

John E. Nelson, Ukiah, for respondents.

MOLINARI, Presiding Justice.

Plaintiff appeals from a judgment quieting title to real property in favor of defendants.

Donald C. Philbrick was the assessee of the subject property prior to its conveyance to defendants on September 21, 1973. Philbrick died on October 20, 1967. On June 4, 1969, the office of the Tax Collector of Mendocino County mailed a certified envelope addressed to 'Donald C. Philbrick, Comptche, Calif. 94527.' Enclosed in the envelope was a notice stating an intent to deed to the state certain properties upon which taxes had not been paid for five years. The letter was returned to the tax collector's office by the Comptche post office marked 'deceased.' The letter was put in a file together with other letters returned to the tax collector which relate to property to be deeded to the state for deliquent taxes. The file kept by the tax collector with respect to the subject property did not indicate that the aforementioned letter had been returned undelivered because the letter was kept in a separate file.

On July 1, 1969, the tax collector deeded the property in question to the State of California.

The name and address of the last known assessee of real property is obtained from the last assessment roll in the tax collector's office.

The parties stipulated that the assessment roll reads as follows: For the tax year 1968--1969 the assessment roll contains the name and address 'D.C. Philbrick, Comptche, California.' For the tax years 1969--1970 and 1970--1971 the assessment roll reads 'Deed to state, Philbrick, D.C., c/o Morris Grupp, S.F.' For the tax year 1971--1972 it reads 'Deeded to State, Natural Resources, Inc., c/o Morris Grupp, S.F.'

On August 31, 1973, a notice that the property was to be sold at public auction for delinquent taxes was mailed by the tax collector to Natural Resources, Inc. in care of Morris Grupp. An employee of the tax collector's office testified that the notice was sent to this addressee because such addressee was the last known assessee as shown on the assessment roll.

The information to the tax collector's office from which the assessment roll is compiled is furnished by the assessor's office. The records of the assessor reflect that the only assessees of the subject property subsequent [60 Cal.App.3d 638] to 1958 were Donald C. Philbrick, the State of California and defendants. Neither the records of the assessor's office nor those of the tax collector indicate how or in what manner the name of Natural Resources, Inc. got on the tax collector's assessment roll for the 1971--1972 tax year. Natural Resources, Inc. did have title to the property at one time but this was in the year 1951.

Morris Grupp, who was appointed executor of the estate of Donald C. Philbrick on November 24, 1967, and who served as executor until his removal in the early part of 1974, testified as follows: He inquired into the tax status of the real property in the estate and knew the taxes were delinquent. He did not sell some of the real property in the estate to pay the delinquent taxes because Jerry Philbrick, the son of the decedent, told Grupp that he and his mother did not approve of any of the sales Grupp had proposed. Grupp had notified the Mendocino County Assessor's office to forward assessment matters to his office address in San Francisco. He had checked in order to determine the length of time before the parcels in the estate could be sold for delinquent taxes. However, as a lawyer, he relied upon the statutes that provided notice will be given before property is sold to the state. Grupp felt that since the estate did not have readily available cash this method was the best way to handle the tax delinquency problem.

When the August 31, 1973, notice that the property was to be sold at public auction was mailed to Grupp's office Grupp was out of the country. His son, Leal Grupp, also an attorney, was taking care of his father's business during his absence. Leal Grupp opened the envelope addressed to Natural Resources, Inc. He had never heard of Natural Resources, Inc. and therefore inquired of Van Harvey, an associate of his father who was attorney for the estate, if he had any knowledge of the company. Van Harvey ascertained the telephone number of Natural Resources, Inc. from the telephone directory. He telephoned the company and inquired if Morris Grupp was known to the company. Upon receiving a negative answer he conveyed this information to Leal Grupp.

Leal Grupp put the notice in a file containing matters dealing with a judgment he had just obtained in favor of Jerry Philbrick against Greenwood Lumber Company. He was under the impression the notice was sent because he was being notified as the attorney of a judgment creditor of a pending sale. He got this impression because the notice contained the handwritten word 'Greenwood.' Only later did he learn that 'Greenwood' referred to the location of the subject property.

The subject property was sold to defendants at public auction and was conveyed to them by the tax collector on September 21, 1973. Morris Grupp learned of the sale in October or November of 1973.

Morris Grupp testified that had he received the notice he would not have connected it to the Philbrick estate and that he might not have opened the envelope but would have forwarded it to Natural Resources, Inc. because he had never represented a company by that name.

The description of the property in the August 31, 1973, notice matches the description of the property as reported in the inventory of the estate.

Grupp filed the instant action to quiet title on December 20, 1973, as the 'executor of the Estate of Donald C. Philbrick, deceased.' ¹ Defendants filed an answer to the complaint and a cross-complaint praying that it be adjudged that they are the owners of the subject property and that plaintiff has no estate or interest therein.

Following trial, the court filed its written memorandum of intended decision indicating the judgment would be for defendants. Pursuant to rule 232 of the California Rules of Court findings of fact and conclusions of law were not required. A judgment was thereafter entered in favor of defendants quieting their title to the subject property.

Although no findings of fact and conclusions of law were filed the trial judge indicated in his memorandum of intended decision that he based his determination on Revenue and Taxation Code sections 3518 and 3521. ² Section 3518, dealing with deeds to the state for delinquent taxes (see § 3511), provides: 'The deed, duly acknowledged or proved, is conclusive evidence, except against actual fraud, of the regularity of all other proceedings from the assessment of the assessor to the execution of the deed, both inclusive.'

Section 3521 provides as follows: '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. ( ) Sections 351 to 358, inclusive, of the Code of Civil Procedure do not apply to the time within which a proceeding may be brought under the provisions of this section.'

The trial court apparently determined that plaintiff was precluded from attacking the 1969 deed from the tax collector to the state notwithstanding the failure of defendants to raise the statute of limitations. Plaintiff asserts that the defense of the statute of limitations was waived by the failure of defendants to plead it as a defense and that, in any event, the statute does not run against an owner whose possession is exclusive and undisputed. As respects defendants' failure to plead to the statute they appear to contend that such failure is not fatal because they were not aware that plaintiff was going to attack the validity of the 1969 deed to the state until the trial. This contention is predicated on the fact that plaintiff's complaint was one to quiet title from which it could not be ascertained that plaintiff's theory on which they based their action was the invalidity of the deed from the tax collector to the state.

We observe, initially, that section 3521 and its counterpart section 175 ³ have been termed 'special' statutes of limitation (see Sears v. County of Calaveras, 45 Cal.2d 518, 521, 289 P.2d 425 (app. dissm'd.351 U.S. 959, 76 S.Ct. 1026, 100 L.Ed. 1481)) that are applicable, as against even owners in possession, where the alleged defects of the deed to the state are not jurisdictional. (Paul v. County of Los Angeles Flood Control Dist.,37 Cal.App.3d 265, 273, 112 Cal.Rptr. 274; Nutting v. Herman Timber Co.,214 Cal.App.2d 650, 656, 29 Cal.Rptr 754.) A defect in a tax proceeding is not jurisdictional where it 'has been for nonobservance of some procedural notice or other step which the Legislature, without defiance of state or federal Constitution, might have dispensed with altogether.' (Nutting v. Herman Timber Co., supra, at p. 656, 29 Cal.Rptr. at p. 757; see Bank of Lemoore v. Fulgham, 151 Cal. 234, 239, 90 P. 936; Bell v. Towns, 95 Cal.App.2d 398, 400--401, 213 P.2d 73.) Such a defect is jurisdictional where the nonperformance consists of constitutionally indispensable steps. (Ramish v. Hartwell, 126 Cal. 443, 448--449, 58 P. 920; Nutting v. Herman Timber Co., supra; Sheeter v. Lifur, 113 Cal.App.2d 729, 738, 249 P.2d 336.)

It is, of course, a well-established principle that a...