ELBERT, LTD. (a Corporation), Respondent, v. JOSEPH M. GROSS, Appellant.
L. A. No. 22222
In Bank
Aug. 14, 1953.
41 Cal.2d 322
The order is affirmed.
Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
John F. Bender and Gizella M. Allen for Respondent.
EDMONDS, J.—Elbert, Ltd., a corporation, sued to obtain a partition of certain real property. The appeal of Joseph M. Gross from a judgment in favor of Elbert presents for decision questions as to the validity of a tax deed.
The real property in controversy is an unimproved lot situated in the city of Los Angeles. In 1925, a street improvement bond was issued under the provisions of the Improvement Act of 1911. (Stats. 1911, p. 730; 3 Deering‘s Gen. Laws, 1937, Act 8199; now
In 1945, the State of California conveyed the land to Gross by a deed based upon the nonpayment of taxes. Gross also holds a certificate of sale from the city treasurer issued to him pursuant to the foreclosure of a street improvement bond dated in 1928.
After the expiration of the time within which the lot could have been redeemed from the sale in connection with the foreclosure of the 1925 bond, the city treasurer conveyed the lot to Elbert. At that time, Gross was the record owner of the property, and it has been stipulated that he was not served with notice of the corporation‘s application for a deed.
The present action for partition is based upon the theory that under the parity principle (Monheit v. Cigna, 28 Cal.2d 19 [168 P.2d 965, 167 A.L.R. 995]; Elbert, Ltd. v. Nolan, 32 Cal.2d 610 [197 P.2d 537]; Stafford v. Realty Bond Service Corp., 39 Cal.2d 797 [249 P.2d 241]), Elbert and Gross are coowners of the lot. Gross answered the complaint, denying the validity of the deed to Elbert and seeking by cross-complaint to quiet his title against the claims of the corporation. In the alternative, he sought an equitable lien against the proceeds of a partition sale for the amount of certain real property taxes and expenses paid by him in connection with the property.
By its judgment, the trial court declared that Gross and
As grounds for reversal of the judgment, Gross contends that the corporation‘s failure to give notice to the record owner of its application for a deed of sale from the city treasurer rendered such deed invalid, and he claims the right to redeem the land. He also argues that the judgment erroneously failed to allow him a lien against the proceeds of the partition sale for the amount of the indebtedness stated by the certificate of sale to be due and unpaid upon the foreclosure of the 1928 bond. Finally, he takes the position that Elbert‘s complaint is defective in that not all the parties having an interest in the property are joined in the action.
The corporation asserts that Gross’ right to object to the validity of the treasurer‘s deed now is barred by the statute of limitations. The lien arising from the foreclosure of the 1928 bond, it declares, was extinguished by the failure of Gross either to redeem the land or to purchase the prior lien upon foreclosure of the 1925 bond.
At the time this action was commenced,
The corporation contends that such notice need be given only if the owner is named in the certificate of sale. Its position is that the clause, “if he is named in the certificate of sale,” modifies both “owner” and “agent.” However, the clause and the word “agent” both appear in the same part of the sentence and are separated from the word “owner” by a comma. The evident purpose of such punctuation is to limit the qualifying clause to “agent.” Giving support to this conclusion is the established rule that “a limiting clause is to be confined to the last antecedent, unless the con-
So construed, in its original form,
The corporation relies upon Elbert, Ltd. v. de Gaffey, 108 Cal.App.2d 388 [238 P.2d 1044], in which a contrary rule was stated. That decision was based upon the wording of section 74* of the Improvement Act of 1911 (Stats. 1911, p. 730; as amended by Stats. 1921, p. 292), the statutory predecessor of
From the wording of section 74 it could not be said with certainty whether the clause, “if named in the certificate,” qualified owner, agent, or both.
The Legislature may amend existing laws by enacting codifications which substantially change the phraseology or punctuation of prior statutes. (In re Trombley, 31 Cal.2d 801, 806 [193 P.2d 934]; Scott v. McPheeters, 33 Cal.App.2d 629, 633 [92 P.2d 678, 93 P.2d 562].)
Elbert also urges that
No sound reason is suggested for making the owner‘s right to notice dependent upon occupancy. Furthermore, such interpretation of the section is contrary to the rule of statutory construction that a limiting clause should be confined to the last antecedent. (County of Los Angeles v. Graves, supra; Hopkins v. Anderson, supra.) The more reasonable conclusion is that the clause refers only to the occupant. So construed, it performs the very obvious function of eliminating the requirement of serving notice upon “the party occupying the property” when it is unoccupied. In that case, notice may be posted upon the property. Thus the section insures that notice will be given both to the owner and to the person in possession or who may thereafter come into possession.
Although, if presented in a timely proceeding Elbert‘s failure to give notice might have invalidated the deed, Gross
Gross asserts that
Another argument is that
There is no conflict when these sections are read in the context of their statutory predecessors. Originally,
The provisions relating to the effect to be given the issuance of a deed were found in section 75 of the act. The first paragraph of that section made the deed primary evidence of the regularity of all prior proceedings. (Now
Moreover, if
Gross argues, however, that unless a proper notice has been given, the city treasurer is without jurisdiction to issue a deed. To give a deed conclusive effect under such circumstance, he asserts, is to deprive him of his property without due process of law.
The constitutional question was considered in Saranac Land & Timber Co. v. Comptroller of New York, 177 U.S. 318 [20 S.Ct. 642, 44 L.Ed. 786]. It was held that a statute of limitations properly may conclude the property owner‘s right of redemption despite so-called “jurisdictional defects” provided he be given a reasonable time in which to enforce his rights. Whether a failure to give notice would be deemed a bar to the operation of the statute was to be determined according to applicable state law.
The same problem was presented in Tannhauser v. Adams, 31 Cal.2d 169 [187 P.2d 716, 5 A.L.R.2d 1015]. In that case there was a failure to give to the record owner proper notice of the purchaser‘s application for a deed. But the purchaser had been in possession of the property from the time the tax deed to him was issued. After a review of the decisions in this state and in other jurisdictions, it was said, “Regardless of what may be the law under other circumstances, it appears to us that there is no sound reason why the right of one out of possession to attack a tax title for the defect here relied upon, whether it be considered jurisdictional or otherwise, should not be barred if his action is not instituted within the pre-
More recently, this court stated: “As the discussion in the Tannhauser case indicates, the rule of inapplicability of statutory limitation has been said to apply as to owners who because of their possession could not be assumed to have actual knowledge of claims of adverse interest by persons not in possession. As the discussion also shows, that rule, borrowed from cases involving mortgages, trusts and the like, has been applied in some jurisdictions where the original owner of land sold to the state remains in undisturbed possession. In the Tannhauser case the plaintiff, the original tax-delinquent owner, was out of possession and was held to be at no greater disadvantage than other litigants who by reason of their lack of promptness in asserting their claims find themselves either without remedy or without right.” (McCaslin v. Hamblen, 37 Cal.2d 196, 199 [231 P.2d 1].)
In the McCaslin case, the plaintiffs acquired the property after issuance of the tax deed and after the limitation period had commenced to run. It was held that they could not qualify as owners in undisturbed possession, having received constructive notice of the outstanding tax deed and the rights acquired pursuant to it, as well as actual notice of the defendants’ hostile claims. As an alternative ground for the decision, the court stated: “Furthermore, it has been held that, whatever might be the rights of an owner in possession, the rule has no application in cases of unimproved and unoccupied land where the only possession is that which is presumed from the fact of conveyance.” (P. 199.)
It is undisputed that the property here concerned is unoccupied and unimproved. Accordingly, despite Elbert‘s failure to give proper notice of its application for a deed, Gross may not question the deed‘s validity. The corporation‘s
In addition to giving to the grantee absolute title to the land, the treasurer‘s deed conveyed the property “free of all encumbrances, except for State, county and municipal taxes.” (
There is no merit in the contention that the complaint is defective because all necessary parties were not joined. Gross does not name any necessary party who was not sued, nor did he demur to the complaint or otherwise present any objection on this ground in the trial court.
The judgment is affirmed.
Gibson, C. J., Carter, J., Traynor, J., and Spence, J., concurred.
SHENK, J.—I dissent. This case deals with the effect of a treasurer‘s deed issued to satisfy a delinquent street assessment where the owner of the land, the defendant in this case, received no notice whatsoever of the application for the deed as required by
The question is whether a statute of limitations can cut off the right of a property owner to contest a treasurer‘s deed under the undisputed facts of this case. The defendant was the record owner of the property and entitled under the statute to 30 days’ written notice of the application for the deed. Within that 30-day period he had the right to redeem; and unless and until the notice was given the right to redeem was extended indefinitely. He received no notice whatsoever of the application for the deed. The plaintiff was the owner of the certificate of sale and entitled to institute proceedings to obtain a deed. The statute imposed upon the plaintiff the duty to give the defendant the written notice. It did not do so. It intentionally withheld it and obtained the deed without
“The essential elements of due process of law are notice and opportunity to defend.” (Simon v. Craft, 182 U.S. 427 [21 S.Ct. 836, 45 L.Ed. 1165].) More recently the United States Supreme Court has restated the obvious: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to . . . afford them [interested parties] an opportunity to present their objections. [Citation.]” (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 [70 S.Ct. 652, 94 L.Ed. 865].)
In the present case the statute required the giving of notice by the party now relying on the statute of limitations, and that notice was not given. Extensive research fails to disclose a case in which a statute of limitations has been allowed to run against a right where the assertion of that right depended on notice from a private party invoking the statute and that notice was not given. The cases proceed on the theory that there must be actual, statutory, or constructive notice. Here there was none and the time did not commence to run by virtue of any provision of law from which notice could be inferred or implied. The periods provided by statute within which redemption might be made and the time within which objections to the deed might be interposed are here held to have expired when that result could be brought about only through the arbitrary discretion and wrongful act of the holder of the certificate of sale in withholding the required notice. The plaintiff‘s noncompliance with the statute and its intentional withholding of notice have resulted in depriving the defendant of his property without due process of law. I would hold that the tax deed proceedings were void for lack of due process and that the period of redemption has not expired. The judgment should be reversed.
Schauer, J., concurred.
Appellant‘s petition for a rehearing was denied September 10, 1953. Shenk, J., Carter, J., and Schauer, J., were of the opinion that the petition should be granted.