Opinion
Page __
__ Cal.App.2d __260 P.2d 1004LAUBISCHv.ROBERDO et al.Civ. 19299.California Court of Appeals, Second District, Third DivisionSept. 16, 1953Hearing Granted Nov. 12, 1953.
Prior opinion 259 P.2d 66.
Ernest W. Pitney, Los Angeles, for appellant.
Glen Behymer, Los Angeles, for respondent.
PARKER WOOD, Justice.
Action to quiet title to real property and to recover damages and rent. Defendant [260 P.2d 1005] Lily A. Cowan, in her answer to the complaint, denied that plaintiff was the owner of the property, admitted that she claimed an interest in the property adverse to plaintiff; and as an affirmative defense alleged that she had been in possession of the property, under a written contract of purchase, from August 21, 1942 to the date of the answer, had paid all taxes on the property during that time, and that plaintiff had no right, title or interest in said property. The judgment was that plaintiff is the owner of and entitled to possession of the property, and that he recover from defendants rent in the sum of $1,295; that defendants and those claiming under them are restrained from asserting any title to the property adverse to plaintiff. Defendant Lily A. Cowan appeals from the judgment.
At the trial the parties stipulated as follows: On January 1, 1939, the Title Insurance and Trust Company was vested with legal title to the property here involved. On that date said company made an executory contract to convey the property to Mora Willison. On September 26, 1939, Mora Willison assigned the contract to Violet E. Bell. Thereafter, Violet E. Bell had improvements made on the property, and, as a result thereof, the Hammond Lumber Company recorded a claim of mechanic's lien on August 16, 1940. In an action to foreclose the lien, the defendants, the Title Insurance and Trust Company and Violet E. Bell, defaulted. A decree of foreclosure, which ordered the sale of the property, was entered January 27, 1941. The value of the property at the time of said decree was about $1,500. On August 21, 1942, Violet E. Bell assigned her interest under the contract to defendant Lily A. Cowan and her husband, S. B. Cowan, as joint tenants. S. B. Cowan died on August 19, 1947. The Title Insurance and Trust Company made a deed, dated April 27, 1944, which recited that the property was conveyed to Mabel Roberdo. On January 16, 1946, Hammond Lumber Company instructed the commissioner, who had been appointed in the decree of foreclosure, to proceed with the sale. On February 7 or 8, 1946, a writ of enforcement was issued. On March 5, 1946, the commissioner sold the property to plaintiff (for $201), and issued his certificate of sale. On March 7, 1947, a deed to the property, executed by the commissioner, was recorded. On May 18, 1949, Mabel Roberdo conveyed the property by a deed to Jennie Wentworth, which deed was recorded June 24, 1949. On July 29, 1949, Jennie Wentworth made a conveyance to Lily A. Cowan, which was recorded on November 23, 1949. The payments provided for under the (above-mentioned) agreement of sale between the Title Insurance and Trust Company and Mora Willison were made by Mr. and Mrs. Cowan from August 21, 1942 to and including September 1, 1949, at which time the balance of the contract price was paid by Mrs. Cowan. The taxes on the property for the years 1940-41 and 1941-42 were paid by the Title Insurance and Trust Company. The taxes for the years 1943, 1944, 1946, 1948 and 1949 were paid by Mr. and Mrs. Cowan. Plaintiff paid the taxes in April, 1947, which consisted of the first installment, which was then delinquent, the penalty, and the second installment, which would have become delinquent the next day. On November 1, 1941, plaintiff delivered a check to the tax collector, and received a bill (plaintiff's Exhibit 8) which was stamped paid on November 25, 1949. One George Hath was in possession of the property as a purchaser under a contract with the Cowans, and he later became a tenant of the Cowans. Since October 13, 1947, someone connected with the 'defense' has been in possession of said property.
Plaintiff, who was the only witness, testified: that on March 8, 1947 (the day after the commissioner's deed was recorded), he went upon the premises and found George Hath and his family in possession of the premises; Hath told plaintiff he had purchased the property from Mr. and Mrs. Cowan on a conditional sales contract; that he was behind in his payments and the Cowans 'cancelled out' on him and he lost everything he had paid; Hath stated he finally made an arrangement with the Cowans to remain on the premises and pay rent,--paying the rent by making repairs on the premises; plaintiff notified Hath that he had purchased the property and Hath said [260 P.2d 1006] that he was going to move the following weekend 'as there was an action pending' (municipal court file, entitled Cowan v. Hath, was received in evidence by reference); about a week later Hath, who had not moved from the property, told plaintiff that he was going to move the following weekend; on April 3, 1947, plaintiff rented the property to William Hamilton for a period of one year from April 17, 1947; Hath moved from the property on April 5th; Hamilton and his family went into possession on April 5th and remained there until October 13, 1947; on October 14, 1947, plaintiff went to the premises and found the house vacant and the doors and windows open; while he was locking the house, appellant (Mrs. Cowan) appeared and demanded possession; a Mr. Sullivan, who lived next door, appellant and another woman lunged against the front door and tried to break in, and plaintiff then called the police; after the officers arrived, they called a city attorney, and arranged for a meeting of the parties at 4 o'clock on that day (with the city attorney); plaintiff, appellant and her attorney attended the meeting; each party told the city attorney what his interest was; the city attorney then said it was a question of title about which nothing could be done at the moment and told the parties there should be no violence; plaintiff then returned to the premises and found that Mr. Sullivan had broken into the premises and taken possession; after plaintiff purchased the property he did not communicate with the Cowans and tell them he had purchased it; the first time he met Mrs. Cowan was on the property in October, 1947; he paid $201 for the property; he entered into a written lease with the Hamiltons and received $420 from them at the time of the execution of said lease; no part of that sum has been repaid.
The court found, among other things, that plaintiff has been the owner of the property involved herein since March 7, 1947; that about October 14, 1947, while plaintiff was the absolute owner and entitled to possession of the premises, defendant Lily A. Cowan entered into possession of the premises without license from plaintiff and wrongfully withheld possession of the premises and still continues to withhold possession thereof from plaintiff; it is not true that defendant Lily A. Cowan paid all taxes upon said real property during the period elapsing between the date of plaintiff's acquisition of title and the date of the trial of the action herein, but that it is true that plaintiff paid part of the taxes during said period; it is not true that defendants or either of them acquired any interest or title in said premises by adverse possession; plaintiff acquired title to said property by purchasing it at a mechanic's lien foreclosure sale, conducted under a writ of enforcement of the foreclosure decree which directed the sale of the property by the commissioner; the commissioner duly and regularly conducted the sale and issued the commissioner's certificate of sale to plaintiff; the sale under the writ of enforcement held on March 5, 1946 was duly, regularly and timely held; no redemption was made 'from said sale,' and the commissioner's deed, pursuant to said certificate of purchase, was duly and regularly made and was recorded March 7, 1947.
Respondent's (plaintiff's) claim of title is based upon the commissioner's deed which he received as purchaser of the property at the foreclosure sale.
Appellant (defendant) contends that the finding that it is true that the sale under the writ of enforcement was duly, regularly and timely held is not supported by the evidence. She argues that the sale was not held timely because the writ of enforcement was not issued within five years after the date of entry of judgment on January 27, 1941. The writ of enforcement bears the stamped date of February 7, 1946 but above the stamped figure '7' is the pen-and-ink figure '8.' It is therefore not clear whether the writ was issued on February 7th or 8th. The attorney for plaintiff said, at the trial, that the date is 'probably February 8th.' The trial judge said, in his memorandum opinion, that the date 'is probably February 8, 1946,' and that 'the writ of enforcement issued on February 8, 1946, was within the five-year period.' It appears that the judge and the attorneys proceeded upon the basis that the writ was issued on February 8th. If it be assumed that the writ was issued on February [260 P.2d 1007] 8, 1946, it was issued 12 days after the expiration of five years from the entry of the judgment on January 27, 1941. Respondent (plaintiff) asserts, however, that the five-year period had not expired for the reason the said period was extended under the provisions of section 12a(b) of the Code of Civil Procedure, in that, the President or Governor appointed 12 such holidays as those which are referred to in that section. According to the written opinion of the trial judge, those 12 days extended the said five-year period. If said period were extended by those 12 days, the period as extended would have expired on February 8, 1946, and therefore the writ of enforcement would have been issued on the last day of the five years as extended. Appellant asserts that two of said 12 days were not holidays appointed by the President or Governor as referred to in said section. The two days so referred to by appellant are April 14, 1945, which was the day of the funeral of President Franklin D. Roosevelt, and August 16, 1945, known as a 'V-J Day.'
Section 12a of the Code of Civil Procedure (in effect during the period involved here) provided in part: 'As to any act provided or required by law to be performed within a specified period of time, such period of time is hereby extended----
Section 10 of the Political Code (now section 6700(n) of the Government Code) provides that holidays include 'every day appointed by the President of the United States or by the Governor of this State for a public fast, thanksgiving or holiday'.
With reference to April 14, 1945, the proclamation of President Truman did not state that it was a holiday or a day for public fast or thanksgiving. It did not state, as asserted in respondent's brief, that it was 'a day of special fast, mourning and prayer.' The proclamation was that it was a day of 'mourning and prayer.' Said April 14th was not a holiday within the meaning of said section 12a.
Proclamation 2648, dated April 13, 1945, U. S. Code Congressional Service 1945, p. 1179, Federal Register, Vol. 10 (1945), page 4009: 'A proclamation To the People of the United States: It has pleased God in His infinite widwom to take from us the immortal spirit of Franklin Delano Roosevelt, the 32nd President of the United States. * * * Now, therefore, I, Harry S. Truman, President of the United States of America, do appoint Saturday next, April 14th, the day of the funeral service for the dead President, as a day of mourning and prayer throughout the United States. I earnestly recommend the people to assemble on that day in their respective places of divine worship, there to bow down in submission to the will of Almighty God, and to pay out of full hearts their homage of love and reverence to the memory of the great and good man whose death they mourn. * * * Harry S. Truman.'
With reference to August 16, 1945, there was no proclamation by President Truman that said day was a day for public fast or thanksgiving. On August 17, 1945, an Executive Order , No. 9597, of President Truman (pertaining to compensation to be paid for work done on holidays) was filed. That order, dated August 14, 1945, amended Executive Order No. 9240, U.S. Code Congressional Service 1942, p. 1251 (pertaining to such compensation) which [260 P.2d 1008] was made by President Roosevelt on September 9, 1942. Said former Order No. 9240 provided: 'No premium wage or extra compensation shall be paid for work on customary holidays except that time and one-half wage compensation shall be paid for work performed on any of the following holidays only: New Year's Day Fourth of July Labor Day Thanksgiving Day Christmas Day and either Memorial Day or one other such holiday of greater local importance.' Said Order No. 9597, made by President Truman, amended said Order No. 9240 by inserting therein after the words 'Christmas Day' the letters and word 'V-J. Day.' Since no date was specified therein as 'V-J Day,' it cannot be concluded from the form of that order that August 16, 1945 was there referred to as a holiday. On August 20, 1945, an Executive Order , No. 9600, dated August 18, 1945, of President Truman was filed, which order also amended said Order No. 9240 by inserting therein after the words 'Christmas Day' the following dates: 'August 15, 1945 August 16, 1945'. On August 25, 1945, an acting director of Office of Contract Settlement issued a regulation regarding 'Fair Compensation for War Contractors,' which related particularly to 'Treatment of Amounts Paid to Employees for August 15 and 16, 1945.' That regulation provided that 'Amounts may be included in the settlement of terminated contracts * * * for payments made to employees for work done on August 15 and 16, 1945.' Attached to that regulation was a memorandum by President Truman, dated August 24, 1945, which stated in part: 'When the news was received on August 14, 1945, that the Japanese had accepted the Potsdam declaration; a statement was issued from the White House that the days of August 15 and 16, 1945, would be declared holidays for was workers under Executive Order 9240, which provides for holiday premium pay.' A proclamation of President Truman [260 P.2d 1009] (filed August 17, 1945), entitled 'Victory: Day of Prayer,' designated Sunday, August 19, 1945, as a day of prayer and thanksgiving for victory in the war with Japan. It thus appears that there was no proclamation by the President appointing August 16, 1945 as a holiday, but there was an Executive Order whereby August 16, 1945 was added to a list of holidays appearing in a former Executive Order, which former order provided that it was premissible to pay 'time and one-half wage compensation' for work performed on the holidays listed therein. It also appears (from the President's memorandum attached to the regulation of the Office of Contract Settlement) that on August 14, 1945 'a statement was issued from the White House that the days of August 15 and 16, 1945, would be declared holidays for war workers under Executive Order 9240 [former order],' and that contractors who paid war workers for time off on those days should be reimbursed by the government. It is to be noted that the Executive Order which added August 16, 1945 to said list of holidays was made on August 18, 1945 which, of course, was after August 16th--the alleged holiday. It is also to be noted that the memorandum, attached to said regulation, states that said August 15 and 16 would be declared holidays for war workers. In other words, the Executive Order did not appoint or proclaim in advance of August 15 and 16 that said days would be holidays; and the statement issued by 'the White House' on August 14th, referred to in the memorandum, was not a proclamation or appointment that August 15 and 16 would be holidays applicable to all persons, but it was a statement that those days would be declared holidays for a certain group or class of persons, namely, 'war workers.' Apparently the purpose of the Executive Order was to fix the compensation for persons who had worked on those days; and the purpose of the memorandum was to provide for reimbursement of employers who paid war workers who did not work on those days. It does not appear that those days were designated holidays at such a time and in such a manner that public offices and institutions would not be open for transaction of business on those days. The order made after said days had passed would not limit or restrict, of course, the transaction of business on said days. If the statement issued by the White House on August 14th be regarded as a proclamation that August 15 and 16 were holidays, then it appears that those days were special holidays applicable to war workers. Section 10 of the Political Code provides: 'A special or limited holiday is hereby defined as a holiday applying only to a special class or classes of business, or a special class or classes of persons, and not appointed to be generally observed throughout the State by all classes of business and all classes of persons.' Said Section 10 also provides that: '* * * on any day appointed by the President or by the Governor as a special or limited holiday all courts, public schools and public offices of this State and of any city, county * * * shall be open and shall function in their normal and usual manner and all other public functions shall be performed as on days which are not holidays and all contracts shall be performed and business transacted as usual except only as to or by the particular class of business or persons expressly limited or restricted by the provisions of the proclamation appointing or declaring such special or limited holiday.' Section 12a of the Code of Civil Procedure provides that special holidays do not extend time under said Section 12a. The purpose in enacting said Section 12a of the Code of Civil Procedure was to give persons, who were required by law to perform a certain act within a certain time, an extension [260 P.2d 1010] of time within which to perform the act, if the President or Governor should appoint a holiday within the period when the act should be performed--the extension of time to be equal to the number of such holidays. Said Section 12a, added to the Code of Civil Procedure on March 10, 1933, was declared to be an urgency measure, and it went into effect immediately. At that time there was a financial and business depression throughout the state and nation, and the Legislature considered that by reason of economic conditions it might be necessary to declare holidays by executive proclamation. That such was the purpose of the section and that those were the circumstances under which it was enacted are indicated by the statements of the Legislature in declaring the section to be an urgency measure. In the 1933 Statutes (in enacting said Section 12a and other sections) it was said at page 307: 'The facts constituting the necessity [for declaring the statute an urgency measure] are as follows: The necessity of declaring holidays by executive proclamation, due to economic conditions, and the possible continuance of such necessity for a greater or shorter period, require that suitable changes in the law, effected by this act, be made immediately, in order to avoid or prevent the loss or impairment of rights dependent upon the performance of acts required to be performed within a specified period of time.' (Italics added.) Since there was no proclamation in advance of said August 15 and 16 or at all that said days were to be holidays for all persons, and since the Executive Order listed them as holidays after said days had passed and then only for the purpose of fixing compensation of employees and allowing reimbursement of employers, and since such references to said days as holidays did not limit or restrict (under the provisions of Section 10 of the Political Code) access to public offices or institutions for the transaction of business on those days, it appears that said days were not holidays that would extend time within the meaning of said Section 12a. Even if it be assumed that the said five-year period could be extended under said Section 12a, the 3 days, namely, April 14, 1945, and August 15 and 16, 1945, should not have been included as days which would extend time under said section. If those 3 days are eliminated from said 12 days, and if it be assumed that said five-year period could be extended under the section, then it would appear that the time was extended 9 days (instead of 12 days) and the last day of the five-year period would have been February 5, 1946. Assuming, but not deciding, that the five-year period could be extended under the section (to February 5, 1946), the writ of enforcement, whether issued on February 8th or 7th in 1946, was not issued within five years after the entry of judgment on January 27, 1941.
Executive Order 9597 'Amending Executive Order No. 9240 Entitled 'Regulations Relating to Overtime Wage Compensation.' By virtue of the authority vested in me * * * it is ordered that Section I B of Executive Order No. 9240 of September 9, 1942, entitled 'Regulations Relating to Overtime Wage Compensation', be, and it is hereby, amended to read as follows: 'No premium wage or extra compensation shall be paid for work on customary holidays except that time and one-half wage compensation shall be paid for work performed on any of the following holidays only: New Year's Day Fourth of July Labor Day Thanksgiving Day Christmas Day V-J Day and either Memorial Day or one other such holiday of greater local importance.' Harry S. Truman.' U. S. Code Congressional Service 1945, p. 1289, Federal Register, Vol. 10 (1945), page 10111. Filed August 17, 1945.
Executive Order 9600 'Amending Executive Order No. 9240 Entitled 'Regulations Relating to Overtime Wage Compensation'. By virtue of the authority vested in me * * * it is ordered that Section IB, of Executive Order No. 9240 of September 9, 1942, entitled 'Regulations Relating to Overtime Wage Compensation', be, and it is hereby, amended to read as follows: 'No premium wage or extra compensation shall be paid for work on customary holidays except that time and
Memorandum by President Truman, attached as Exhibit A to regulation of acting director of Office of Contract Settlement: 'When the news was received on August 14, 1945, that the Japanese had accepted the Potsdam declaration; a statement was issued from the White House that the days of August 15 and 16, 1945, would be declared holidays for war workers under Executive Order 9240, which provides for holidays premium pay. An executive Order effectuating this was subsequently issued; and the Secretary of Labor publicly expressed my hope that war workers who did not work on those days would be paid by their employers at straight-time rates. There was widespread observance of these holidays, which represented an appropriate recognition of the magnificent contribution made by war workers to our victory. In view of these actions, contractors who pay the war workers among their employees for time off taken during these two days should be reimbursed by the Government to the extent that the Government is compensating these contractors on a cost basis. * * *' (Federal Register, Vol. 10 (1945), page 10985.)
Proclamation 2660 '(Victory; Day of Prayer) By the President of the United States of America.
Respondent (plaintiff) asserted, in his petition for rehearing, that an additional Thanksgiving Day should be included in the list of days that would extend the five-year period. He refers to the two Thanksgiving Days in November, 1941, and asserts in effect that only one of them was included in said list of 12 days. The written opinion of the trial judge shows that he included Thanksgiving Day, November 27, 1941 (appointed by the Governor) as a holiday. (He referred to it as one of the undisputed holidays.) His opinion also shows that he found that Thanksgiving Day, November 20, 1941 (appointed by the President) was a holiday, and that he counted it as one of the 12 days. (He referred to it as one of the disputed holidays.) It therefore appears that both Thanksgiving Days in 1941 were included in the list of 12 days.
Respondent also contends that it was not necessary to have a writ of enforcement issued, for the reason that the decree of foreclosure in the mechanic's lien case created the lien against the property and directed that the property be sold to satisfy the amount of the lien. He argues that there was no limit as to the time when the sale could be made. Section 684 of the Code of Civil Procedure provides: 'When the judgment is for money, or the possession of real or personal property, the same may be enforced by a writ of execution; and * * * when the judgment requires the sale of property, the same may be enforced [260 P.2d 1011] by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment, by making the sale and applying the proceeds in conformity therewith; * * *.' In Knapp v. Rose, 32 Cal.2d 530, 197 P.2d 7, the judgment debtors contended that only a writ of execution could issue properly and that because a document entitled 'writ of enforcement' was obtained the certificate of sale and deed were void. The writ therein recited that a second judgment had been entered which ordered certain property to be sold, and a copy of the judgment was attached to the writ. The court therein said, 32 Cal.2d at page 534, 197 P.2d at page 9: 'It is, therefore, immaterial whether the writ was entitled a 'writ of enforcement,' 'writ of execution,' or 'order of sale,' as long as the substance of it was sufficient and in conformance with the statute. The writ obtained by Rose [judgment creditor] fulfilled these requirements.' A writ of enforcement was necessary herein. According to statutory provisions, a writ of enforcement should be issued within five years after the entry of judgment. Section 681 of the Code of Civil Procedure provides: 'The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. * * *' It was stated in Dorland v. Hanson, 81 Cal. 202, at page 204, 22 P. 552, at page 553, that: 'Section 681 must be held to apply to a judgment the object, purpose, and effect of which is to enforce the payment of money, whether the same be a personal judgment against the party indebted, or a decree foreclosing a lien for an amount due.' Section 674 of said code provides that a judgment lien, resulting from the recording of an abstract of the judgment, 'continues for five years from the date of the entry of the judgment or decree unless the enforcement of the judgment or decree is stayed on appeal * * *.' Section 685 of said code provides: 'In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code.' There was no motion herein to obtain an order of court for enforcement of the judgment after the lapse of five years. As above stated, the writ of enforcement herein was not issued within five years after the entry of judgment, even if it be assumed that said five year period could be extended under the provisions of said Section 12a(b).
The evidence was not sufficient to support the finding that the sale under the writ of enforcement was duly, regularly and timely held.
By reason of the above conclusions, it is not necessary to consider other contentions upon appeal.
The judgment is reversed; and the superior court is directed to enter a judgment that plaintiff has no right, title or interest in said property, and has no claim or lien thereon.
SHINN, P. J., and VALLÉE, J., concur.
'(a) * * *
'(b) By such number of days as equals the number of holidays (other than special holidays) appointed by the President or by the Governor and which occur within or during such period; and
'(c) * * *.'
one-half wage compensation shall be paid for work performed on any of the following holidays only: New Year's Day Fourth of July Labor Day Thanksgiving Day Christmas Day August 15, 1945 August 16, 1945 and either Memorial Day or one other such holiday of greater local importance.' Harry S. Truman.' U. S. Code Congressional Service 1945, p. 1293, Federal Register, Vol. 10 (1945), page 10158. Filed August 20, 1945.
'A Proclamation The was lords of Japan and the Japanese armed forces have surrendered. They have surrendered unconditionally. * * * It has come with the help of God * * *. Let us give thanks to Him, and remember that we have now dedicated ourselves to follow in His ways to a lasting and just peace and to a better world. Now, Therefore, I, Harry S. Truman, President of the United States of the United States of America, do hereby appoint Sunday, August 19, 1945, to be a day of prayer. I call upon the people of the United States, of all faiths, to unite in offering their thanks to God for the victory we have won, and in praying that He will support and guide us into the paths of peace. I also call upon my countrymen to dedicate this day of prayer to the memory of those who have given their lives to make possible our victory. * * * Harry S. Truman.' U. S. Code Congressional Service 1945, p. 1193, Federal Register, Vol. 10 (1945), page 10111.