77 P. 822 | Cal. | 1904
This is an appeal from an order and judgment of the court denying plaintiffs' petition for a writ of mandate. *114
The petition alleges in substance that certain real estate belonging to plaintiffs was sold by the defendant treasurer of the city of Los Angeles, for failure to pay the installments of a certain street-improvement bond constituting a lien thereon, to the defendant Donegan for $4,435.34, which sum was the total amount of said bond and interest, and that said treasurer, as such, issued to Donegan a certificate of said sale. It was further alleged that notwithstanding the full payment of said bond by said sale the said treasurer failed and refused to cancel and mark it paid, and left it remaining as a lien upon said property.
A demurrer to the petition was sustained and the judgment appealed from followed.
We think the demurrer was properly sustained. There is nothing in the petition to show that the sale of the property was irregular or illegal. It will be presumed that official duty has been regularly performed. We must therefore presume that the property was regularly and legally sold as provided by the statute, and that all the legal steps were taken necessary to make the certificate of sale valid in the hands of the purchaser. The plaintiffs would then have no interest remaining in the property that could be affected by the improvement bond, canceled or uncanceled. Their right to redeem would still remain though the bond were not marked paid, and the uncanceled bond could form no possible cloud upon that right. The real thing that affects plaintiffs' title to their property is the outstanding certificate of sale, and this would still be outstanding though the bond were canceled. And inasmuch as the sale was to the holder of the bond for an amount covering the bond, a redemption from the sale and a proper record of such redemption will have the effect to dispose not only of the certificate of sale, but also of the bond, and thus clear the title of record. There is only one indebtedness and one creditor, and when that indebtedness is discharged it also discharges everything in the nature of an encumbrance securing that indebtedness held by the creditor. The right to redeem is optional and may never be exercised. If it is exercised it will cost the same to redeem whether the bond is previously canceled or not. The bond is not a lien upon the right to redeem, and can only become obnoxious to the financial interests of plaintiffs when they shall have exercised their right *115 of redemption and shall have been thus reinvested with the unencumbered title to the property. Then, and not till then, can they claim that they are injured by the failure to cancel the bond.
The writ of mandate will not issue in a case where the plaintiff fails to show that it will subserve or protect some right or interest of his. (North v. Board of Trustees,
The judgment should be affirmed.
Harrison, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed. Angellotti, J., Shaw, J., Van Dyke, J.