Stevens v. Plumas Eureka Annex Mining Co.

WASTE, C. J.

Plumas Eureka Annex Mining Company made and executed in writing a lease agreement by which there was leased to one Bourey mining property in Plumas County. In and by the terms of the agreement, a sum of ten thousand dollars was advanced, which amount defendant mining company agreed to pay. At the same time there was executed a deed of trust made by the company as grantor, P. J. Behneman and L. D. Byrne as trustees, and

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J. A. Talbot as beneficiary, to secure the performance of the terms and conditions of the lease, which had, in the meantime, been assigned and transferred by Bourey to said Talbot. Talbot thereafter filed a voluntary petition in bankruptcy, listing among his assets the deed of trust executed by the mining company, which deed of trust was sold by order of court, through the trustee in bankruptcy, and was purchased by plaintiff, respondent here, for the sum of $3,999.

The new owner of the deed of trust gave, filed and recorded a notice of default in the performance of the terms and conditions of the lease and option secured by the deed of trust, together with an election to sell the property. The mining company thereupon commenced an action against the respondent in the United States District Court, praying for a judgment canceling, annulling and setting aside the deed of trust, and procured" a temporary injunction restraining the trustees from selling the property under its terms. On the cause being brought to trial the court dismissed the ease and dissolved the injunction. By reason of the injunction, the time fixed for the sale of the property had expired. The substituted trustee therefore again advertised the property for sale, and the mining company commenced an action in the Superior Court of the County of Plumas, in which county the property was located, and obtained a restraining order enjoining the trustee from proceeding with the sale. On return of the order to show cause, the preliminary injunction was dissolved, and the action dismissed. The property was then sold to the respondent. The appellant continued in possession of the property, and this action to recover possession was thereupon brought by the respondent. The defendant answered, seeking affirmative relief, and praying that the sale of the property under notice of default, as provided in the deed of trust, be set aside and canceled. Judgment was entered for the plaintiff, from which the defendant mining company appeals.