Opinion
7-15-1953
LAUBISCH v. ROBERDO et al. * Civ. 19299.
Ernest W. Pitney, Los Angeles, for appellant. Glen Behymer, Los Angeles, for respondent.
LAUBISCH
v.
ROBERDO et al. *
July 15, 1953.
Rehearing Granted Aug. 5, 1953.
Ernest W. Pitney, Los Angeles, for appellant.
Glen Behymer, Los Angeles, for respondent.
PARKER WOOD, Justice.
Action to quiet title to real property and to recover damages and rent. Defendant Lily A. Cowan, in her answer to the complaint, denied that plaintiff was the owner of the property, admitted that she claimed an interest in the property adverse to plaintiff; and as an affirmative defense alleged that she had been in possession of the property, under a written contract of purchase, from August 21, 1942 to the date of the answer, had paid all taxes on the property during that time, and that plaintiff had no right, title or interest in said property. The judgment was that plaintiff is the owner of and entitled to possession of the property, and that he recover from defendants rent in the sum of $1,295; that defendants and those claiming under them are restrained from asserting any title to the property adverse to plaintiff. Defendant Lily A. Cowan appeals from the judgment.
At the trial the parties stipulated as follows: On January 1, 1939, the Title Insurance and Trust Company was vested with legal title to the property here involved. On that date said company made an executory contract to convey the property to Mora Willison. On September 26, 1939, Mora Willison assigned the contract to Violet E. Bell. Thereafter, Violet E. Bell had improvements made on the property, and, as a result thereof, the Hammond Lumber Company recorded a claim of mechanic's lien on August 16, 1940. In an action to foreclose the lien, the defendants, the Title Insurance and Trust Company and Violet E. Bell, defaulted. A decree of foreclosure, which ordered the sale of the property, was entered January 27, 1941. The value of the property at the time of said decree was about $1,500. On August 21, 1942, Violet E. Bell assigned her interest under the contract to defendant Lily A. Cowan and her husband, S. B. Cowan, as joint tenants. S. B. Cowan died on August 19, 1947. The Title Insurance and Trust Company made a deed, dated April 27, 1944, which recited that the property was conveyed to Mabel Roberdo. On January 16, 1946, Hammond Lumber Company instructed the commissioner, who had been appointed in the decree of foreclosure, to proceed with the sale. On February 7 or 8, 1946, a writ of enforcement was issued. On March 5, 1946, the commissioner sold the property to plaintiff (for $201), and issued his certificate of sale. On March 7, 1947, a deed to the property, executed by the commissioner, was recorded. On May 18, 1949, Mabel Roberdo conveyed the property by a deed to Jennie Wentworth, which deed was recorded June 24, 1949. On July 29, 1949, Jennie Wentworth made a conveyance to Lily A. Cowan, which was recorded on November 23, 1949. The payments provided for under the (above-mentioned) agreement of sale between the Title Insurance and Trust Company and Mora Willison were made by Mr. and Mrs. Cowan from August 21, 1942 to and including September 1, 1949, at which time the balance of the contract price was paid by Mrs. Cowan. The taxes on the property for the years 1940-41 and 1941-42 were paid by the Title Insurance and Trust Company. The taxes for the years 1943, 1944, 1946, 1948 and 1949 were paid by Mr. and Mrs. Cowan. Plaintiff paid the taxes in April, 1947, which consisted of the first installment, which was then delinquent, the penalty, and the second installment, which would have become delinquent the next day. On November 1, 1949, plaintiff delivered a check to the tax collector, and received a bill (plaintiff's Exhibit 8) which was stamped paid on November 25, 1949. One George Hath was in possession of the property as a purchaser under a contract with the Cowans, and he later became a tenant of the Cowans. Since October 13, 1947, someone connected with the 'defense' has been in possession of said property.
Plaintiff, who was the only witness, testified: that on March 8, 1947 (the day after the commissioner's deed was recorded), he went upon the premises and found George Hath and his family in possession of the premises; Hath told plaintiff he had purchased the property from Mr. and Mrs. Cowan on a conditional sales contract; that he was behind in his payments and the Cowans 'cancelled out' on him and he lost everything he had paid; Hath stated he finally made an arrangement with the Cowans to remain on the premises and pay rent,--paying the rent by making repairs on the premises; plaintiff notified Hath that he had purchased the property and Hath said that he was going to move the following week-end 'as there was an action pending' (municipal court file, entitled Cowan v. Hath, was received in evidence by reference); about a week later Hath, who had not moved from the property, told plaintiff that he was going to move the following week-end; on April 3, 1947, plaintiff rented the property to William Hamilton for a period of one year from April 17, 1947: Hath moved from the property on April 5th; Hamilton and his family went into possession on April 5th and remained there until October 13, 1947; on October 14, 1947, plaintiff went to the premises and found the house vacant and the doors and windows open; while he was locking the house, appellant (Mrs. Cowan) appeared and demanded possession; a Mr. Sullivan, who lived next door, appellant and another woman lunged against the front door and tried to break in, and plaintiff then called the police; after the officers arrived, they called a city attorney, and arranged for a meeting of the parties at 4 o'clock on that day (with the city attorney); plaintiff, appellant and her attorney attended the meeting; each party told the city attorney what his interest was; the city attorney then said it was a question of title about which nothing could be done at the moment and told the parties there should be no violence; plaintiff then returned to the premises and found that Mr. Sullivan had broken into the premises and taken possession; after plaintiff purchased the property he did not communicate with the Cowants and tell them he had purchased it; the first time he met Mrs. Cowan was on the property in October, 1947; he paid $201 for the property; he entered into a written lease with the Hamiltons and received $420 from them at the time of the execution of said lease; no part of that sum has been repaid.
The court found, among other things, that plaintiff has been the owner of the property involved herein since March 7, 1947; that about October 14, 1947, while plaintiff was the absolute owner and entitled to possession of the premises, defendant Lily A. Cowan entered into possession of the premises without license from plaintiff and wrongfully withheld possession of the premises and still continues to withhold possession thereof from plaintiff; it is not true that defendant Lily A. Cowan paid all taxes upon said real property during the period elapsing between the date of plaintiff's acquisition of title and the date of the trial of the action herein, but that it is true that plaintiff paid part of the taxes during said period; it is not true that defendants or either of them acquired any interest or title in said premises by adverse possession; plaintiff acquired title to said property by purchasing it at a mechanic's lien foreclosure sale, conducted under a writ of enforcement of the foreclosure decree which directed the sale of the property by the commissioner; the commissioner duly and regularly conducted the sale and issued the commissioner's certificate of sale of plaintiff; the sale under the writ of enforcement held on March 5, 1946 was duly, regularly and timely held; no redemption was made 'from said sale,' and the commissioner's deed, pursuant to said certificate of purchase, was duly and regularly made and was recorded March 7, 1947.
Respondent's (plaintiff's) claim of title is based upon the commissioner's deed which he received as purchaser of the property at the foreclosure sale.
Appellant (defendant) contends that the finding that it is true that the sale under the writ of enforcement was duly, regularly and timely held is not supported by the evidence. She argues that the sale was not held timely because the writ of enforcement was not issued within five years after the date of entry of judgment on January 27, 1941. The writ of enforcement bears the stamped date of February 7, 1946 but above the stamped figure '7' is the penand-ink figure '8.' It is therefore not clear whether the writ was issued on February 7th or 8th. It appears that the judge and the attorneys proceeded upon the basis that the writ was issued on February 8th. Assuming that the writ was issued on February 8, 1946, it appears that it was issued 12 days after the expiration of five years from the entry of the judgment on January 27, 1941. Respondent (plaintiff) asserts, however, that the five years had not expired for the reason the five year period was extended under the provisions of section 12a(b) of the Code of Civil Procedure, in that, the President or Governor appointed 12 such holidays as those which are referred to in that section. 1 According to a memorandum opinion of the trial judge, those 12 days extended the said five year period. If said period was extended by those 12 days, the five year period as extended would have expired on February 8, 1946, and therefore the writ of enforcement would have been issued on the last day of the five years as extended. Appellant asserts that 3 of said 12 days were not holidays appointed by the President or Governor as referred to in said section. The 3 days so referred to by appellant are April 14, 1945, which was the day of the funeral of President Franklin D. Roosevelt, and August 15 and 16, 1945, known as V-J Days. Before discussing those 3 days, reference should be made to another of the 12 days, which is not discussed in the briefs. One of the other alleged holidays included in said 12 days was July 5, 1941. Since July 4th of that year was on Sunday (which was a holiday), July 5th was a statutory holiday, according to the provisions of sections 10 and 11 of the Political Code, 2 and was not a holiday appointed by the President or the Governor, as provided in said section 12a(b). In Millsap v. Hooper, 34 Cal.2d 192, it was said on page 195 (in the footnote), 208 P.2d 982: 'Section 12a extends time only when holidays appointed by the President or the Governor (i. e., irregular holidays whose date cannot be precisely foretold) intervene during the period in question. Holidays established by the Legislature under section 10 of the Political Code do not extend time under section 12a.' If said day, July 5th, is eliminated from said 12 days, and if it is assumed the five year period can be extended under the provisions of said section 12a(b), then it would appear that the last day of said five year period would have been February 7, 1946. If the writ of enforcement was issued on February 8th, then it was not issued within five years as so extended after the entry of the judgment. With reference to April 14, 1945, which was the day of the funeral of President Roosevelt, the proclamation of President Truman was that said day was a day of fast, mourning and prayer. The proclamation did not declare that said day was a holiday. Section 10 of the Political Code provides that holidays within the meaning of that code include 'Every day appointed by the President of the United States or by the Governor of this State for a public fast, thanksgiving or holiday'. Said April 14th was not a holiday. If said day April 14th is also eliminated from said 12 days, and if it is assumed said five year period can be extended, then it would appear that the time was extended 10 days (instead of 12 days) and the last day of the five year period would have been February 6, 1946. Assuming, but not deciding, that the five year period could be extended under said section 12a(b) (to February 6, 1946), the writ of enforcement (which was issued on February 8th) was not issued within five years after the entry of the judgment on January 27, 1941. By reason of said conclusion, eliminating two days from said 12 days, it is not necessary to determine whether August 15 and 16, 1945, should also be eliminated from said 12 days which the trial court concluded extended the five year period.
Respondent (plaintiff) also contends that it was not necessary to have a writ of enforcement issued for the reason that the decree of foreclosure in the mechanic's lien case created the lien against the property and directed that the property be sold to satisfy the amount of the lien. He argues that there was no limit as to the time when the sale could be made. Section 684 of the Code of Civil Procedure provides: 'When the judgment is for money, or the possession of real or personal property, the same may be enforced by a writ of execution; and * * * when the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment, by making the sale and applying the proceeds in conformity therewith; * * *.' In Knapp v. Rose, 32 Cal.2d 530, 197 P.2d 7, 9, the judgment debtors contended that only a writ of execution could issue properly and that because a document entitled 'writ of enforcement' was obtained the certificate of sale and deed were void. The writ therein recited that a second judgment had been entered which ordered certain property to be sold, and a copy of the judgment was attached to the writ. The court therein said, 32 Cal.2d at page 534, 197 P.2d at page 9: 'It is therefore, immaterial whether the writ was entitled a 'writ of enforcement,' 'writ of execution,' or 'order of sale,' as long as the substance of it was sufficient and in conformance with the statute. The writ obtained by Rose [judgment creditor] fulfilled these requirements.' A writ of enforcement was necessary herein. According to statutory provisions, a writ of enforcement should be issued within five years after the entry of judgment. Section 681 of the Code of Civil Procedure provides: 'The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. * * *' It was stated in Dorland v. Hanson, 81 Cal. 202, at page 204, 22 P. 552, at page 553, that: 'Section 681 must be held to apply to a judgment the object, purpose, and effect of which is to enforce the payment of money, whether the same be a personal judgment against the party indebted, or a decree foreclosing a lien for an amount due.' Section 674 of said code provides that a judgment lien, resulting from the recording of an abstract of the judgment, 'continues for five years from the date of the entry of the judgment or decree unless the enforcement of the judgment or decree is stayed on appeal * * *.' Section 685 of said code provides: 'In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code.' There was no motion herein to obtain an order of court for enforcement of the judgment after the lapse of five years. As above stated, the writ of enforcement herein was not issued within five years after the entry of judgment even if it be assumed that said five year period could be extended under the provisions of said section 12a(b).
The evidence was not sufficient to support the finding that the sale under the writ of enforcement was duly, regularly and timely held.
By reason of the above conclusions, it is not necessary to consider other contentions upon appeal.
The judgment is reversed; and the superior court is directed to enter a judgment that plaintiff has no right, title or interest in said property, and has no claim or lien thereon.
SHINN, P. J., and VALLEE, J., concur. --------------- * Subsequent opinion 260 P.2d 1004. 1 Section 12a of the Code of Civil Procedure (in effect during the period involved here) provided in part: 'As to any act provided or required by law to be performed within a specified period of time, such period of time is hereby extended---- '(a) * * * '(b) By such number of days as equals the number of holidays (other than special holidays) appointed by the President or by the Governor and which occur within or during such period; and '(c) * * *.' 2 Section 10 of the Political Code provides in part (second paragraph): 'If * * * the fourth day of July * * * falls upon a Sunday, the Monday following is a holiday.' Section 11 of the Political Code provides in part: 'If * * * the fourth day of July * * * falls upon a Sunday, the Monday following is a holiday.'