91 P. 816 | Cal. Ct. App. | 1906
This is a suit to quiet title, resulting in a judgment for the plaintiff. The defendants appeal from the judgment, and from an order denying a motion for a new trial.
The complaint is in the usual form, alleging title in plaintiff's testator, George Locke, at the time of his death, and subsequent title in his estate. The original title of plaintiff's testator is admitted. But defendants in their answer allege title in the defendant Rheinschild, deraigning title (in the *664 second defense set up in the answer) under sales of the two lots in controversy by the city treasurer upon default in payment of the first installment due on bonds issued upon a street assessment for the improvement of Bridge street, in the city of Los Angeles, and deeds thereon issued. They also set up, in a third defense, as a claim against the land, a bond issued upon a street assessment of the same lots for the improvement of the crossing of Echandia street with Bridge street; and, in a fourth defense, an alleged estoppel in pais is pleaded.
It appears from the findings that the specifications of the work under both assessments were the same as those involved in Stansbury v. White,
On the latter point it is clear that the terms of the curative provision in question have no application and that — assuming the bonds to be valid — the validity of the deeds must depend upon the conformity or nonconformity of the proceedings of the treasurer with the provisions of the law as prescribed in section 5 of the act cited (Stats. 1893, p. 36), and in section 3765 et seq. of the Political Code, therein referred to; and on this point it is to be regarded as settled law that, to give validity to the deed, it devolved upon the defendants to prove affirmatively a strict compliance with the statutory provisions. (Shipman v. Forbes,
But it is found, also, and adjudged that the bonds themselves set up in the defendants' answer are void; and it remains to consider how far these findings and the corresponding judgment can be sustained; and in this regard the case is as follows: The proceedings for the assessment of Bridge street and the issue of bonds thereon are set forth in detail in the second defense of the answer; and this is the case also with regard to the proceedings for the assessment of Echandia street and the bonds thereon issued, which are set forth seriatim in the third defense. Upon the issues thus raised the court finds that all the allegations of the answer as to the proceedings, from the passage of the ordinance of intention down to and including the ordinance of intention to issue serial bonds, and the failure of the owners of three-fourths of the frontage to elect to take the work, are true; and it is also found that the bonds were issued as alleged, but "are wholly void," etc. All the other allegations and denials contained in defendants' answer are found not to be true; and it is thus in effect found that none of the proceedings required by law in the improvement of a street, and the assessment of property therefor, from the making of the contract to the return of the warrant, inclusive — including the actual performance of the work — were in fact taken. All that appears from the findings, therefore, is: That after the usual precedent proceedings, the contract for doing the work was awarded to the defendant Rheinschild; and that, thereupon, without any intervening proceedings or acts on his part, or on that of the council, the bonds in question were issued to *667 him. The question is thus obviously suggested, whether, under the decision in Chase v. Trout, the bonds themselves are to be regarded as conclusive evidence, not only "of the regularity," but also of the actual performance "of all the proceedings" required by the street work act subsequent to the ordinance of intention. To this question there would seem to be but one answer. If there was in fact no contract, no work done, and no assessment, warrant or demand of payment, there was no tax due or lien therefor, for which bonds could be issued; and for the legislature to declare that the issue of a paper in the form of a bond should be conclusive evidence that these essential proceedings had been taken would seem to be beyond its competency; nor do we find anything in the decision in Chase v.Trout inconsistent with such a conclusion. But however this may be, it appears from the evidence in the bill of exceptions — which was received without objection and not contradicted — that there was in the case of each improvement a contract, an actual performance of the work, an assessment, with warrant, etc., and demand of payment, and return, and other matters negatived by the general finding of the court; and, indeed, there seems to have been no dispute as to the existence of these facts. We are, therefore, almost forced to the conclusion that the general finding of the court, that all allegations of the complaint, other than those expressly found to be true, were untrue, was the result of inadvertency; and that it did not intend so to find; and, however this may be, the finding is clearly unsupported by the evidence.
It follows that a new trial must be had, but with regard to the further proceedings in the case, there are other points to be adverted to. Whatever may be the effect of the provision of section 4 of the bond act, making the bonds referred to "conclusive evidence of the regularity of . . . proceedings," it applies only to the proceedings "previous to the making of the certified list of all assessments unpaid, etc., and of the validity of said lien up to the date of said list." But it is only upon the receipt of this certified list from the street superintendent that the treasurer can issue the bonds; and we cannot make out from the finding of the court whether it is intended to find that the list was not made as alleged, or the contrary. It is also provided in section 4 *668 of the act, that if notice from the owner of the land, accompanied with the affidavit and certificate prescribed, be given to the treasurer, that "he desires no bond to be issued," then "no such bond shall be issued"; and it is alleged in the answer, with regard to each of the assessments, that such notice was not given. On this point the general findings of the court may be construed as negativing this allegation, but there is no specific finding, and we are not satisfied that the court intended so to find. Upon another trial the findings should be made more definite on these and other points.
The judgment and order appealed from are reversed, and the cause remanded for further proceedings in accordance with the views expressed in this opinion.
Gray, P. J., and Allen, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on June 26, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 23, 1906.