Flack v. Boland

[105]

SHENK, J.

This appeal on the judgment roll is taken by the plaintiff as executor of the estate of Max Janka, deceased. From this record it appears that the defendants Boland, on August 3, jl926, executed and delivered a promissory note for $1500 to the decedent, payable three years after date, and secured the same by a trust deed on certain real property. On August 20, 1931, the defendants Boland executed and delivered to the defendant and cross-complainant Mack, another promissory note for $1,000, payable one year after date, and secured the same by a second trust deed on the same property.

On December 15, 1934, the plaintiff commenced an action to foreclose the trust deed given to Janka and joined Mack as a party defendant. The defendants Boland defaulted. The defendant Mack filed an answer in which he denied the allegation that the lien of his trust deed was subordinate to the plaintiff’s lien and alleged that the plaintiff’s cause of action was barred under subdivision 1 of section 337 of the Code of Civil Procedure. Mack also filed a cross-complaint in which he sought to foreclose his trust deed and to have the plaintiff’s claim subordinated to his claim and lien.

The court rendered its decree foreclosing both trust deeds and adjudging that the lien of the defendant and cross-complainant Mack was prior to the lien of the plaintiff. It was therefore ordered that upon the sale of the property the proceeds be applied, first, to satisfy the claim of the defendant and cross-complainant Mack; secondly, to satisfy the claim of the plaintiff; and thirdly, that the surplus, if any, be paid to the defendants Boland.

It is conceded by the parties that the action to foreclose the plaintiff’s trust deed and the cross-complaint to foreclose the Mack trust deed were brought pursuant to the provisions of section 725a added to the Code of Civil Procedure in 1933. That section provides: “The beneficiary or the trustee named in a deed of trust upon real property or any interest therein to secure a debt or other obligation, shall have the right to bring suit to foreclose the same in the manner and subject to the provisions, rights and remedies relating to the foreclosure of a mortgage upon such property.”

The first question presented on this appeal is whether the defense of the statute of limitations is available in an action to foreclose a deed of trust under section 725a, above quoted.