Gonzales v. Ito (12 Cal. App. 2d 124, 1936)

CRAIL, P. J.

This is an appeal by the plaintiff from a judgment against him in an action for declaratory relief wherein he sought to have the court determine the legal effect of a transfer by two aliens not eligible to citizenship, named Ito, of certain property used for commercial purposes. The aliens acquired their title to the property through two channels : one, through execution of a judgment which they had obtained from the plaintiff; and another by complying with an interlocutory decree. Prior to May 9, 1927, defendant Ito was in possession of the property as a tenant of the plaintiff and he was conducting a general garage business thereon. On said date he was wrongfully dispossessed by the plaintiff and he thereafter obtained judgment for damages for such eviction in the sum of $9,000. The judgment was affirmed on appeal. The judgment, not having been paid, defendant Ito had the property sold under execution, and the sheriff sold at execution sale all of the plaintiff’s right, title and interest in and to the property. The property already had a vendor’s lien against it for $6,500 which was prior to the lien of Ito’s judgment and, there being no bidder at the sheriff’s sale, defendant Ito bid in the property. A sheriff’s certificate of sale was issued to him.

Subsequent to the wrongful eviction of Ito, the plaintiff leased the property to a market corporation which later became involved financially and eventually its rights under the second lease were hypothecated to the Citizens National Bank. After defendant Ito had bought in at the sheriff’s sale, the bank brought an action against all the parties herein to determine its rights under a foreclosure clause in the second lease, and there was an interlocutory judgment rendered in that action whereby defendant Ito was given the right to redeem the property by paying approximately $1550 to the bank, and it was further ordered and decreed therein that upon the payment of said sum Ito was to be restored to all the right, title and interest of the plaintiff in and to his original contract of purchase. Within thirty days after the rendition! of said interlocutory judgment and on September 6, 1933, the defendant Cronin paid the bank all moneys due it. This payment was made under an agreement with Ito whereby i Cronin agreed to buy all of Ito’s right and interest in the original contract of sale for $8,000, subject only to the balane^ due on the original purchase agreement.

Thereafter defendant Cronin went ahead with his part of the purchase of the property, and the fee title to the property which is still vested in the plaintiff’s vendor would be vested in Cronin éxcept for a stop order served upon the sheriff by the plaintiff which has resulted in the sheriff refusing to issue his deed to anyone who claims through the sheriff’s certificate. The contentions of the plaintiff are: (a) Aliens not eligible to citizenship cannot own pr hold real property in the state of California, (b) That no exception is made in behalf of those aliens who have acquired title through foreclosure of a lien on said property, (jc) That a conspiracy to defeat the Alien Land Law arises when parties with knowledge of the disabilities, cause title to be taken in the name of such alien, (d) Such transaction, being void, it can be questioned collaterally by anyone.” Stating the question more succinctly, it is—that the sale under foreclosure to Ito was void ab initio and therefore the defendants have no interest whatever in the property. '

The plaintiff’s first contention is answered by the Alien Land Law itself (Stats. 1921, p. lxxxiii), and by one of the treaties referred to therein. Section 2 of the Alien Lánd Act reads as follows: “All aliens other than those mentioned in section one of this act may acquire, possess, enjoy an