Opinion
9-2-1953
KIPP et al. v. KIPP. * Civ. 4596.
Kipp & Gaskins, San Diego, for appellant. Solon S. Kipp and W. E. Starke, San Diego, for respondents.
KIPP et al.
v.
KIPP. *
Sept. 2, 1953.
Rehearing Denied Sept. 29, 1953.
Hearing Granted Oct. 29, 1953.
Kipp & Gaskins, San Diego, for appellant.
Solon S. Kipp and W. E. Starke, San Diego, for respondents.
MUSSELL, Justice.
Defendant appeals from an interlocutory judgment of partition in an action brought by plaintiffs pursuant to the provisions of Section 752 of the Code of Civil Procedure.
Plaintiffs allege that they are the owners in fee of an undivided one-half interest in the real property involved subject to a lien in favor of the defendant; that the defendant is the owner of the remaining interest in said property, subject to a lien in favor of the plaintiffs; and that they are tenants in common with the defendant. Plaintiffs claim title through a certificate of sale and commissioner's deed following the foreclosure of a street improvement bond. Defendant's title is founded on a tax deed to the State of California and a tax deed to him from the State.
Defendant here attacks the validity of the foreclosure action and the commissioner's deed to plaintiffs, contending that said foreclosure and deed did not operate to convey any title to plaintiffs and that the bond lien on which the commissioner's deed is based was extinguished on January 1, 1947, by the provisions of Section 2911 of the Civil Code as amended in 1945. Stats.1945, Ch. 361, § 1, p. 821. We do not agree with these contentions.
On July 19, 1930, street improvement bond No. 21, Series 1382, was issued by the city of San Diego under the Improvement Act of 1911 and on that date became a lien on the real property here involved. The last coupon on this bond was due and delinquent on January 2, 1944. The city and county taxes for 1932 became delinquent and the property was sold to the State of California in 1933 and deeded to the State on July 1, 1938. On August 21, 1945, the State, under Chapter 7, Part 6, Division 1 of the Revenue and Taxation Code, sold and conveyed the property by tax deed to the defendant Virgil S. Kipp.
On December 30, 1943, C. G. Starke, acting for the plaintiffs, filed an action against Harry E. Bardot and Margaret Bardot, owners in fee of the real property, to foreclose the said street assessment bond. On December 31, 1946, a decree of foreclosure of sale was entered in said action and on January 9, 1947, writ of enforcement was issued. On February 4, 1947, the sale was held and a commissioner's certificate of sale was issued to plaintiffs. On March 31, 1948, plaintiffs obtained a commissioner's deed to the property.
It is conceded that plaintiffs' foreclosure action was filed in time and within the four-year period following the due date of the last coupon attached to the bond. Plaintiffs were the owners of the bond and had a lien on the property of equal rank and on a parity with that of the State. Monheit v. Cigna, 28 Cal.2d 19, 24, 168 P.2d 965, 167 A.L.R. 995. While plaintiffs could not, at the time the complaint was filed, have foreclosed the bond lien against the tax title held by the State because of the sovereign immunity doctrine and because of the parity existing between the State's tax title and plaintiffs' bond lien, they were in a position to foreclose the bond against the former owner's right of redemption and satisfy the bond lien or redeem the property from the State. Sipe v. Correa, 38 Cal.2d 131, 135, 238 P.2d 989. When the property was sold by the State to defendant on August 21, 1945, plaintiffs' privilege of redemption was terminated, but plaintiffs' lien, which was on a parity with the tax lien, was not thereby extinguished.
Under the circumstances presented by the record, plaintiffs' lien was not extinguished by the provisions of Section 2911 of the Civil Code as amended in 1945, which raises the presumption of the extinguishment of assessment liens at the expiration of four years after the due date of assessment bonds or of the last installment thereof, or of the last principal coupon attached thereto, or on January 1, 1947, whichever is later. The foreclosure action was filed in time and while the commissioner's deed was not issued to plaintiffs until March 31, 1948, a decree of foreclosure and order of sale was obtained and entered in the action on December 31, 1946, one day prior to the limitation date set forth in Section 2911 of the Civil Code.
Appellant cites Kipp v. Luberco, Ltd., 116 Cal.App.2d 656, 254 P.2d 150, decided by this court, as sustaining his contention of extinguishment of the bond lien. However, in that case, although plaintiff had filed a complaint in the foreclosure action, she did nothing further until September 30, 1947, eight months after the presumed extinguishment date of the bond, and in the instant case, plaintiffs had obtained a decree of foreclosure prior thereto, thereby overcoming the disputable presumption of extinguishment of the bond lien.
Judgment affirmed.
BARNARD, P. J., concurs. --------------- * Subsequent opinion 269 P.2d 1.