Broadway Improvement & Investment Co. v. Tumansky

THOMPSON, J.

Plaintiff and defendants have both appealed from portions of the judgment rendered in this action, the plaintiff being dissatisfied with that portion of the judgment which declared that the defendants were entitled to the immediate possession of 75 Pittsburg automatic gas steam radiators installed in an apartment house in Los Angeles, and the defendants contending that the portion of the judgment which enjoins them from removing a complete elevator system, a complete Frigidaire refrigeration system and 56 wall beds is erroneous. The defendants and appellants have abandoned their claims to the hot water heating plant and 48 sets of bathroom appliances. Both parties rely upon the judgment roll alone.

The findings of fact disclose that one Clyde S. Riedel was the owner of certain unimproved real property on March

[467]

24, 1927, at which time he borrowed from the American Mortgage Company $120,000, securing the payment of the notes given to evidence the loan by a deed of trust, it being the purpose of Riedel and the mortgage company that the loan so made should be used for the construction of an apartment house in accordance with plans and specifications theretofore prepared. Subsequent to the execution and recordation of the trust deed, a four-story brick apartment building containing 48 units was erected, but prior to the completion of- the building, Clyde S. Riedel sold his interest in the property to J. J. Straus, who completed the building and equipped it. Straus installed the property here in controversy. The elevator system, the Frigidaire system and the wall beds were purchased upon conditional sales contracts but shortly thereafter the property so purchased was paid for in full by Straus or his successors in interest. After the building was completed and wholly equipped Straus sold the property to El Capitan, Inc., a corporation, which concern transferred title to William M. Hunt. On May 9, 1929, William M. Hunt executed to El Capitan, Inc., a promissory note in the sum of $47,500, payable in installments and secured by a second deed of trust. This second trust deed not only described the real property but also contained a description of certain furniture and furnishings, including the 48 wall beds and Frigidaire units. Hunt also executed a chattel mortgage containing a description of the furniture in the apartment house, including the 48 wall beds and Frigidaire units. No mention was made in the trust deed or in the chattel mortgage of the elevator system or of the gas steam radiators. Subsequently El Capitan, Inc., sold the trust deed and chattel mortgage to the defendants and appellants. Hunt defaulted in the payment of the promissory note secured by the second deed of trust and, upon foreclosure sale, the defendants became the purchasers and went into possession of the property, subject, however, to the deed of trust executed by Riedel on March 24, 1927. Hunt had also defaulted' in payment of the note secured by this first trust deed, which, in the meantime, had been assigned to the plaintiff and, on June 6, 1931, plaintiff became the purchaser at trustee’s sale under the first deed of trust.