Opinion
Page __
__ Cal.App.2d __227 P.2d 548GORDONv.ROMBOTIS et al. Civ. 18186.California Court of Appeals, Second District, Second DivisionFeb. 19, 1951.Hearing Granted April 19, 1951.
Rehearing Denied March 5, 1951.
John F. Bender and Gizella M. Allen, Los Angeles, for Elbert, Ltd.
Chas. I. Rosin, Los Angeles, for respondent.
MOORE, Presiding Justice.
The question for decision is whether section 2911 of the Civil Code is valid in that it provides that a bond issued to represent an assessment for a public improvement is conclusively presumed to have been extinguished at the expiration of four years after the due date of such bond or of the last principal coupon.
Section 2911, Civil Code. 'A lien is extinguished by the lapse of time within which, under the provisions of the Code of Civil Procedure, either:
Respondent sued to quiet title to a specified lot 9 alleging that he was a purchaser thereof in good faith from the state at public sale April 1, 1949, for default in the payment of city taxes for the fiscal year [227 P.2d 549] 1932-1933 and subsequent years. Rombotis filed a disclaimer. Appellant, Elbert, Ltd., answer that it is owner of Bond 84, County Improvement No. 758, issued by the Treasurer of Los Angeles County, March 5, 1931, for sewering Geraghty street 'and that there is due and unpaid thereon all principal and interest installments from July 2, 1933,' plus unpaid interest and penalties on such unpaid amounts. Also, it denied that such purchase was in good faith and for a valuable consideration.
The court found that appellant owns bond 84 and that nothing has been paid on account thereof from July 2, 1933; that respondent purchased the lot in good faith and for a valuable consideration; is the holder of a tax title, represented by a tax deed issued April 1, 1949, by the Tax Collector to respondent; that bond 84 was issued March 5, 1931, provided for payment of principal and interest in ten equal installments, the last of which became due and payable January 2, 1941; that by reason of the law and by virtue of the provisions of section 2911 of the Civil Code the lien theretofore existing by virtue of bond 84 has expired, is not effective for any purpose and respondent acquired lot 9 free of any lien subsisting by virtue of bond 84. The judgment quieted title in respondent.
Appellant now demands a reversal of the judgment on the following grounds: 1. The lien of the unpaid taxes which merged into the State's title was on a parity with the lien of bond 84. 2. During the State's ownership appellant was barred from commencing an action for partition by constitutional prohbitions. 3. Under the facts of this case either the conclusive presumption provision of section 2911 is violative of the due process clause of the federal constitution or a tax deed buyer is not a bona fide purchaser for value.
In support of its thesis appellant divides its argument under nine propositions and cites a number of pertinent authorities designed to show that (1) respondent's lien is limited to the amount paid for the tax deed, citing Monheit v. Cigna, 28 Cal.2d 19, 168 P.2d 965, 167 A.L.R. 995; Elbert v. Nolan, 32 Cal.2d 610, 197 P.2d 537; Munden v. Hayes, 89 Cal.App.2d 772, 202 P.2d 112; (2) the lien of bond 84 persists despite the sale to the state and in spite of the provisions of section 2911 of the Civil Code; (3) the statute of limitations, sec. 2911, Civ.Code, should be tolled; (4) its lien is the amount due on bond 84; (5) the fact that bond 84 was not paid in view of sections 6460 and 6446 of Streets and Highways Code overcomes the presumption that the lien of the bond was extinguished. Such contentions are vain in the light of Rombotis v. Fink, 89 Cal.App.2d 378, 201 P.2d 588, a hearing of which was denied by the Supreme Court in February, 1949.
The facts there involved are an exact parallel of those now under review and the contentions made by the parties are almost identical with those made here. The trial court there found that the street improvement bond was valid and subsisting; the statute of limitations was tolled while the property was owned by the state; the defendant was entitled to a court foreclosure of the bond. On appeal the judgment was reversed with the observations that (1) the provisions of the Civil Code, section 2911, do not impair the obligations of a contract; (2) the several applicable enactments reflect a clear purpose to provide a definite period of limitations as to all liens arising under special assessments upon the expiration of which period street improvement liens would be unenforceable and presumptively extinguished; (3) laws may provide that a person who has been afforded a reasonable opportunity to protect his rights and failed to take advantage thereof may be barred from asserting such rights; (4) the establishment of statutes of limitation is always a legislative prerogative; (5) there is urgent need for certainty, finality and security of titles; (6) a bona fide purchaser is one who takes in good faith and for value and in reliance upon the presumptions afforded by section 2911, supra. Thereupon, the judgment was reversed with the holding that sections 330 and 2911 of the Civil Code as amended in 1945 are constitutionally applicable to [227 P.2d 550] assessment bonds in existence prior to the effective date of the legislation and that the plaintiff was entitled to have his title quieted against the defendant, holder of the bond.
The authorities cited by appellant are of no avail. They were announced prior to the effective date of section 2911 and therefore antedate Rombotis v. Fink, supra.
Judgment affirmed.
McCOMB, J., concurs.
'1. An action can be brought upon the principal obligation, or
'2. A treasurer, street superintendent or other public official may sell any real property to satisfy a public improvement assessment or any bond issued to represent such assessment and which assessment is secured by a lien upon said real property; whichever is later.
'Anything to the contrary notwithstanding, any lien heretofore existing or which may hereafter exist upon real property to secure the payment of a public improvement assessment shall be presumed to have been extinguished at the expiration of four years after the due date of such assessment or the last installment thereof, or four years after the date the lien attaches, or on January 1, 1947, whichever is later, or in the event bonds were or shall be issued to represent such assessment, the lien shall then be presumed to have been extinguished at the expiration of four years after the due date of said bonds or of the last installment thereof or of the last principal coupon attached thereto, or on January 1, 1947, whichever is later. The presumptions mentioned in this paragraph shall be conclusive in favor of a bona fide purchaser for value of said property after such dates.'