
    [L. A. No. 1246.
    Department Two.
    August 11, 1904.]
    W. H. CLARK, Respondent, v. CITY OF SAN DIEGO, Appellant.
    Quieting Title—Action against City—Defense—Lien for Delinquent Taxes—Statute of Limitations—Extinguishment of Lien. —In an action to quiet title against a city, a defense of a lien for delinquent taxes cannot be sustained where the right of action for the collection of the taxes is lost under the statute of limitations. In such case the lien therefor is extinguished under section 2911 of the Civil Code.
    APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial. N. H. Conklin, Judge.
    The facts are stated in the opinion of the court.
    H. E. Doolittle, City Attorney, for Appellant.
    [Withington & Carter, for Respondent.
   HENSHAW, J.

This is an action to quiet title. As defenses to the action, defendant pleaded the liens for delinquent taxes for the years 1890 and 1893, and prayed that the taxes be decreed valid and subsisting liens upon the property. Admittedly, upon the authority of the City of San Diego v. Higgins, 115 Cal. 170, and Dranga v. Rowe, 127 Cal. 506, the right of action for the collection of the taxes according to the statute of 1880, page 136, is lost. The court decreed, under section 2911 of the Civil Code, and upon the authority of Dranga v. Rowe, that the lien of the taxes was likewise lost, and quieted plaintiff's title accordingly. It is here contended that a distinction is to bé drawn between the ease of Dranga v. Rowe and the case at bar, since in the former case the defendant sought affirmative relief that no decree should be rendered quieting plaintiff’s title, except upon payment of the assessed taxes, whereas, in the case at bar, it is asked only that the taxes be decreed to constitute subsisting liens. There is, however, no difference in principle between the cases. Dranga v. Rowe was decided upon the theory that the lien was extinguished, and the trial court was therefore correct in its ruling and decision in the case at bar.

For which reason the judgment and order denying defendant’s motion for a new trial are affirmed.

McFarland, J., and Lorigan, J., concurred.

Hearing in Bank denied.  