Sipe v. McKenna

• Court: California Court of Appeals
• Writing for the Court: VALLEE; SHINN, P. J., and WOOD
• Citation: Sipe v. McKenna, 235 P.2d 416, 106 Cal.App.2d 559 (Cal. App. 1951)
• Decision Date: 18 September 1951
• Parties: SIPE v. McKENNA. Civ. 18265.

Page 416

235 P.2d 416

106 Cal.App.2d 559

SIPE v. McKENNA.

Civ. 18265.

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

Sept. 18, 1951.

Catherine A. McKenna, in pro. per.

Robert E. Rosskopf, Beverly Hills, for respondent.

VALLEE, Justice.

Plaintiff brought this suit to quiet title to a vacant parcel of realty.

On January 11, 1927, a bond was issued under the County Improvement Act of 1921, Stats. 1921, p. 1658, which was a lien on the parcel involved. The County Improvement Act of 1921 adopted, as a part thereof, the Improvement Act of 1911, which is now sections 5000-6794 of the Streets and Highways Code. Defendant acquired title to the property on January 5, 1940. On November 4, 1946, the county treasurer, for the purpose of foreclosing the lien of the bond, sold the property to plaintiff for $551.40, and a certificate of sale was issued and recorded. On December 30, 1947, no redemption having been made, the treasurer issued a deed to plaintiff. On January 15, 1948, plaintiff paid the 1947 county taxes in the amount of $16.63, and on January 16, 1948, redeemed all delinquent county taxes for the years 1932-1945, both inclusive, in the amount of $248.60. This suit was commenced February 3, 1948.

Doubt arose as to the validity of the treasurer's deed of December 18, 1947, because of the wording of the affidavit of posting filed with the county treasurer. On January 20, 1949, plaintiff, in writing, notified the county treasurer of such doubt; advised that he desired to reserve and post notice to redeem, and have a new deed issued; requested the treasurer to endorse on the certificate of sale the dates and amounts of the taxes he had paid; and authorized him to accept redemption at any time prior to application for deed on February 23, 1949. Notice to redeem was served on defendant personally on January 21, 1949, and was posted on the property on January 23, 1949. The notice said that the property could be redeemed 'at any time prior to due and proper application for a deed, and that unless sooner redeemed according to law, the undersigned, the said purchaser, will on the 23rd day of February, 1949, apply to the Treasurer of the County of Los Angeles, for a deed to said property.' No redemption having been made, a new deed was issued to plaintiff by the county treasurer on May 12, 1949. By leave of court a supplemental complaint was filed setting up the matters which occurred after the filing of the original complaint. The answer denied all the allegations of the complaint and supplemental complaint, alleged ownership in fee simple, adverse possession, and plead numerous statutes of limitation. Judgment was for plaintiff from which defendant appeals.

Defendant contends that the first deed of December 30, 1947, was void for the reason that 'no notice of the application for that deed was ever served' on her as required by section 6550 of the Streets and Highways Code. We have not found any evidence in the record to the effect that notice of such application was not served on defendant. The reference to the reporter's transcript which she gives does not support her statement to that effect. The deed says that the affidavit 'has been filed with me [the county treasurer] showing the giving of written notice to redeem and of intention to apply for a deed on this date.' Section 6555 of the Streets and Highways Code provides: 'The deed of the treasurer, when duly acknowledged or proved, is primary evidence of the regularity of all proceedings theretofore had, and conveys to the grantee the absolute title to the lands described therein, as of the date of the expiration of the period for redemption, free of all encumbrances, except the lien for State, county and municipal taxes.' If we should assume that the first deed was invalid, it presented no obstacle to the issuance of valid second deed. It was the duty of the treasurer to issue a valid deed. Sts. & Hy. Code, § 6554. If the first deed was void, it was his duty, on compliance with the statutory requirements, to issue a valid second deed. Barrett v. Brown, 26 Cal.2d 328, 332, 158 P.2d 567; Schainman v. All Persons, 96 Cal.App. 753, 759, 275 P. 225, 276 P. 113.

The certificate of sale recited that the sum of $551.40, for which the property was sold by the treasurer, included 'Penalty $208.57.' Defendant next contends that the first and second deeds were void because of the inclusion of this item in the certificate of sale. The point is without merit. The statutes expressly require the inclusion of penalties in the amount for which the property may be redeemed. Sts. & Hy. Code, §§ 6504, 6508.

When plaintiff requested the treasurer to endorse on the certificate of sale the 1947 taxes of $16.63, and the delinquent taxes of $248.60, which he (plaintiff) had paid, the treasurer did so. The record is not clear as to the fact, but apparently the amount of these taxes was included in the notice to redeem, served on defendant on January 21, 1949, and posted on January 23, 1949. Defendant contends that the second deed was void because of the inclusion of the amount of these taxes in the notice to redeem. There is no merit in the point. At any time after delivery of the certificate of sale, the legal holder thereof may pay any taxes upon the property described in the certificate which may be prior to his lien, or he may redeem the property from any sale made in the collection or enforcement of such taxes. Sts. & Hy. Code, § 6515. It is the duty of the treasurer to indorse on the certificate of sale the fact that receipts have been produced for amounts so paid, the nature of the taxes paid, the amounts thereof, and to collect the same on redemption. Sts. & Hy. Code, §§ 6513, 6516.

The bond in question was originally issued to 'The Elliott-Horne Co.' Defendant apparently contends that title to the bond did not pass from The Elliott-Horne Co. We are not referred to any evidence to that...