McArthur v. Wellman

DESMOND, J.,

pro tem.

This appeal is taken by the widow of John A. McArthur from a judgment holding that, while she was entitled to foreclose a deed of trust executed by the defendant John B. Wellman, her recovery under such foreclosure would be subject to payment of two liens.represented by judgments which had been obtained by the Hayward Lumber and Investment Company in the sum of $788.58, and Home Finance and Mortgage Company in the sum of $687.22. The appeal is, of course, from the portion of the judgment which gives priority to these liens over the trust deed held by appellant, and is grounded upon a claim that the evidence does not support the judgment. The trust deed in question was recorded in the county of Los Angeles on January 28, 1932, and was given to secure payment of a promissory note dated January 21, 1932, in favor of John A. McArthur and Margaret McArthur, husband and wife as joint tenants, in the sum of $2,000. On January 21, 1925, a note in the sum of $1950, payable three years after date, and a trust deed attaching to the same premises had been executed by Mr. Wellman in favor of Mr. and Mrs. McArthur. The date of maturity of this last-mentioned three-year note was January 21,1928, and action on the note would be barred by the statute of limitations after the lapse of four years from that date. The four years expired on January 21, 1932, and the court found:

“That on the occasion of the execution of said Request for Reconveyance and the execution and recording of said reconveyance, the principal sum mentioned in the note and trust deed executed in 1925 had not been paid, and the said reconveyance was incidental to the execution by the said John B. Wellman of a new note and trust deed representing and securing the same obligation.” The request for

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reconveyance, according to the reconveyance itself placed of record by the Title Insurance and Trust Company on January 28, 1932, recited: “that all sums secured by said Deed of Trust have been fully paid and that said Deed of Trust and the note or notes secured thereby have been surrendered to said Trustee for cancellation”. If, as a matter of fact, the obligation represented by the first trust deed had been paid, of course, the liens held by the judgment creditors became effective, and the judgment of the court, as has been stated, did, in fact, give them full effect over any claim of the appellant under the second trust deed.