Opinion
2-6-1951
SIPE v. CORREA et al. Civ. 17722.
Robt. E. Rosskopf, John F. Bender and Gizella M. Allen, all of Los Angeles, for appellant.
SIPE
v.
CORREA et al.
Feb. 6, 1951.
Rehearing Denied Feb. 26, 1951.
Hearing Granted April 2, 1951.
Robt. E. Rosskopf, John F. Bender and Gizella M. Allen, all of Los Angeles, for appellant.
Harold W. Kennedy, County Counsel and John D. Maharg, Deputy County Counsel, Los Angeles, Solon S. Kipp and W. F. Starke, San Diego, amici curiae.
No appearance for respondents.
DRAPEAU, Justice.
Plaintiff brings this action in partition. He alleges in his complaint that two street improvement bonds which he owns are liens upon real property, and prays for partition sale and payment to him of principal and interest due upon the bonds. He also prays for declaratory relief.
Defendants purchased the property at a tax sale, and claim that the tax deed passed title to them free from the lien of the bonds.
The trial court found for defendants, and plaintiff appeals. Other defendants named in the complaint did not appear upon the trial, being interested only in the former fee title.
Plaintiff's bonds are dated July 19, 1928, and January 29, 1931. They are ten-year bonds, issued under the County Improvement Act of 1921, with $93.15 and $393.79 due on each.
Prior to defendants' purchase, the property had been deeded to the state on or about July 1, 1936, for delinquent county taxes for the fiscal year 1930-31. Defendants paid $380 for the tax deed. The deed is dated March 17, 1947; the complaint was filed June 18, 1947.
Plaintiff asserts that the title conveyed by the state was subject to the parity lien of his bonds.
Amici curiae who have filed briefs in behalf of defendants contend that plaintiff neither stated nor proved a cause of action; that recovery on both bonds is barred by the provisions of Section 330 of the Code of Civil Procedure and Section 2911 of the Civil Code.
It is argued that the right to foreclose the bonds expired January 2, 1942, as to one bond, and January 2, 1945, as to the other; that the power of the treasurer to foreclose the bonds expired January 1, 1947; and that the lien of the bonds terminated on the last named date.
The trial court found that the liens were unenforceable because of the bar of our statute of limitations.
Plaintiff states his position as follows:
'As heretofore pointed out, the tax lien in this case arose in 1930. The property became delinquent in 1931 and was 'sold to the State'; in 1936 it was deeded to the State. The State of California thereafter held title until the sale to defendants Correa in March, 1947.
'The parity of liens arose when both liens were created on the property. The lien of Bond 176 arose on July 19, 1928. The tax lien arose on the first Monday in March, 1930, at a time when the bond lien was in existence, therefore creating a parity of liens. The lien of Bond 87 arose January 29, 1931, at which time the tax lien still existed, creating another lien on a parity with the tax lien. Therefore the liens were all in existence as liens on January 29, 1931, and the parity situation was established. The foreclosure of one of the liens does not affect the other. * * * * * *
'The applicable statute in this case is Section 3712 Revenue and Taxation Code. The title conveyed by the State and acquired by defendants, under the terms of said section was 'free of all encumbrances of any kind existing before the sale, except: * * * Liens for special assessments levied upon the property conveyed * * *.''
Section 752 of the Code of Civil Procedure permits partition 'where real property is subject to a lien on a parity with that on which the owner's title is based, by the owner or by the holder of such lien, * * *.'
Plaintiff relies upon Monheit v. Cigna, 28 Cal.2d 19, 168 P.2d 965, 167 A.L.R. 995, and Elbert, Ltd. v. Nolan, 32 Cal.2d 610, 197 P.2d 537.
Unless the rules laid down in the foregoing cases have been superseded by valid legislation, plaintiff should prevail, his liens adjudged to be on a parity with the tax lien leading to defendants' title, and the rights of the parties declared accordingly.
Defendants contend that these cases were commenced before the effective date of the amendments providing for limitation of such actions as this, and are, therefore, no longer controlling.
The Legislature may enact a statute of limitations applicable to existing causes of action or shorten a former limitation period if the time allowed to commence the action is reasonable. Mercury Herald Co. v. Moore, 22 Cal.2d 269, 138 P.2d 673, 147 A.L.R. 1111; Security First Nat. Bank v. Sartori, 34 Cal.App.2d 408, 93 P.2d 863; Rombotis v. Fink, 89 Cal.App.2d 378, 201 P.2d 588.
Statutes of limitation are within the jurisdictional power of the legislature of a state. Saranac Land & Timber Co. v. Roberts, 177 U.S. 318, 20 S.Ct. 642, 44 L.Ed. 786.
Statutes of limitation are vital to the welfare of society and are favored by the law. They are to be viewed as statutes of repose, and as such constitute meritorious defenses. Fontana Land Co. v. Laughlin, 199 Cal. 625, 250 P. 669, 48 A.L.R. 1308.
Good public policy would indicate that there must be some limitation upon the existence of liens of street improvement bonds. To extend such liens indefinitely, increasing in amount year by year as interest accrues, to require purchasers at tax sales to pay such liens before real estate may be put to any useful purpose, keeps off the tax rolls property which would otherwise bear its share of costs of government.
The lot here in question remained for years an eyesore in the neighborhood, littered with tin cans and rubbish, fettered with liens of street improvement bonds which the owner failed to foreclose, having a free ride so far as taxes for the common good were concerned; with partition demanded only when changed economic conditions made it apparent that the amount of the bonds could be collected.
At any time before plaintiff's action became barred he could have acquired title to the lot, paid city and county taxes, and assumed a fair part of the burdens incident to all ownership of property.
Under the facts in this case plaintiff's cause of action is barred by the statute of limitations.
The judgment is affirmed.
WHITE, P. J., concurs.
DORAN, Justice.
I dissent: In my opinion the bonds are a contract which must be governed by the law at the time the contract was executed. They represent a vested right and a property right although bonds are not 'considered property subject to taxation.' The legislature is without power to impair the obligation of a contract. So far as these bonds are concerned the code provisions relied on by defendants are ex post facto.