295 P. 569 | Cal. Ct. App. | 1931
This action was begun by the plaintiffs to quiet title to lot 115, Mortimer's East Hollywood View Tract, as per map recorded in book 8, page 27, records of Los Angeles County. The defendants had judgment and the plaintiff Grace P. Warden appeals.
The defendants Barnes interposed denials to the respective allegations of the plaintiffs' complaint, and in their answer, by way of further defense, alleged their ownership of the premises involved, and prayed for affirmative relief, to wit, that their title be quieted against all the demands of the plaintiffs.
The defendants Brooks denied the allegations of the plaintiffs' complaint, and among other things, set up the existence of a mortgage on the premises involved in the sum of $6,000, and prayed that the plaintiffs take nothing as against them.
The record shows that the cause of action was based upon a failure to pay installments of principal in the sum of *289 $6.08 due on a street improvement bond. The plaintiffs introduced a deed to the premises involved, executed by the city treasurer of the city of Los Angeles to Grace P. Warden, and then rested. The defendants then introduced in the first place sufficient evidence to warrant a judgment finding the defendants Barnes to be the owners of the premises involved, and then introduced the certificate of sale upon which the deed, executed in favor of the plaintiff Grace P. Warden, was based.
The record further shows that the bond for the street improvement was issued in accordance with the act of June 4, 1913. (Stats. 1913, p. 845 et seq.) This act prescribes the method of foreclosure of the sale of property and the items which may be included as costs. The bond in question was number 132. The insufficiency of this certificate will be considered later on.
Appellant bases her argument in favor of reversal upon the alleged error of the trial court in admitting testimony relative to the name of the owner of the lot against which the bond was outstanding as a lien. Whether the contention of the appellant is correct or incorrect, or whether the name of the owner of the lot should be given in proceedings leading up to a sale of the lot, for failure to pay either principal or interest upon a bond issued for street improvements, need not be determined in this action, as the certificate to which we have referred shows that the plaintiff has no title to the premises. A reference to the certificate shows the following items making up the amount of $22.69 alleged to be due, to wit:
[1] Section 5 of the act of 1893, as amended in 1913, reads as follows: "Subdivision C. The City Treasurer must collect, in addition to the 50¢ amount due on such bond, the costs of publication of such notice and for the certificate of sale as hereinafter provided." This section was amended in 1921 providing for a charge of $1 for the *290 certificate of sale. However, the act of 1921 (Stats. 1921, p. 558) is inapplicable to the case at bar.Amount of unpaid principal of bond ..... $ 6.08 Amount of interest on bond ............. .61 Costs .................................. 15.00 Certificate of sale .................... 1.00 ______ Total ............................ $22.69
In Chapman v. Jocelyn,
[2] The case of Chapman v. Jocelyn is also decisive of another point involved in this action, to wit, the failure to correctly state the amount due in the certificate. On page 300 of 182 Cal. the figures all are set forth showing a discrepancy in the statement of the amount due in the sum *291 of $1.95. In the case at bar, as shown by the certificate, there was an error in the statement as to the amount due by reason of an excessive cost charge, and the record further shows an error of 87¢ on the amount necessary to redeem.
In addition to the case of Chapman v. Jocelyn, supra,
showing the materiality of these discrepancies, we may cite the cases of Simmons v. McCarthy,
[3] The appellant, in answer to these discrepancies, calls our attention to section 53 of the Vrooman Act (Stats. 1885, p. 147), relative to defects and irregularities or informalities and omissions, contending that this section refers to foreclosure proceedings of a bond given for an assessment. This contention, however, is untenable. The section refers to such informal proceedings as may be corrected by the city council, and has no relevancy whatever to proceedings to foreclose a bond. The city council has jurisdiction only of the improvement in making the assessment, but has nothing to do with foreclosure proceedings.
[4] The record further discloses that after the making of findings, drawing conclusions and the entry of judgment herein, upon motion of the respondents the court made the following order:
"It is Hereby Ordered that said judgment, findings of fact and conclusions of law be vacated and set aside, and that said defendants Walter J. Barnes and Alice Barnes be, and they hereby are granted leave to file herein judgment, *292 findings of fact and conclusions of law with judgment modified to make said judgment conditional upon the payment to plaintiffs Grace P. Warden and C.P. Warden of a sum of money equal to the full amount of taxes, penalties and costs paid out by said plaintiffs;
"Further, It Is Ordered, that the foregoing order is made on condition that the same be of no effect if a notice of said motion by the moving defendants to plaintiffs is necessary to a proper hearing of said motion. Should notice be necessary and the said order be of no effect, this court will then consider that said motion of defendants has been put before this court to be heard after proper notice to said plaintiffs.
"T.H. SELVAGE, Judge."
This order is not supported by sections
The case of Stanton v. Superior Court,
The judgment in all particulars save as hereinafter stated, in favor of the respondents, is affirmed. The judgment in so far as it quiets the title of the respondents Barnes against all claims of Grace P. Warden, based upon the lien of the bond involved in this action, is reversed, and the cause remanded to the trial court to proceed and ascertain the amount due on said bond, together with such interest and costs as may properly be added thereto and charged against the respondents Barnes, and enter judgment accordingly.
It is further ordered that all of the parties herein bear their own costs.