Barberi v. Rothchild

California Supreme Court Oct 21, 1936 No. S. F. 15573Published

Before: Nourse

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Holding. The court held that title to real property acquired by a trustor after a sale under a first deed of trust inures to the benefit of the beneficiary of a second deed of trust, and that the trustor is further estopped from asserting an adverse claim due to the express warranty of title in the second deed.

Issues

Whether title acquired by a trustor after a foreclosure sale under a first deed of trust inures to the beneficiary of a second deed of trust.
Whether a trustor who warrants title in a deed of trust is estopped from asserting an adverse claim against the beneficiary after reacquiring the property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Subsequently acquired title inures to mortgagee. Title acquired by the mortgagor subsequent to the execution of the mortgage, inures to the mortgagee as security for the debt in like manner as if acquired before the execution”

“We can see no reason why the code sections should not apply to a deed of trust which is a “conveyance””

“When the grantor in the second deed warranted “the title to said premises” he covenanted to defend it against all lawful claims and thereby effectively estopped himself from setting up any adverse claims in his own behalf.”

[538]

NOURSE, J.,

pro

tem.

Plaintiff sued to enjoin a sale of real property under a deed of trust and to quiet title to the property. In a trial upon an agreed statement of facts the defendants had judgment.

The pertinent facts are: Plaintiff, while owner of the fee, made two deeds of trust on August 9, 1920; one was recorded at 3:06 P. M. and the other at 3 :07 P. M. of the day of execution. On October 1, 1924, the property was sold under the deed first recorded to a brother of the plaintiff. On July 12, 1926, plaintiff filed a petition in bankruptcy and obtained his discharge on October 20th of that year. On January 5, 1928, the plaintiff purchased the trust property from his brother. The defendant Rothchild is the executor of the estate of Abraham Rosenberg, the beneficiary under the deed of trust second recorded. The defendants, Jenkins and Fry are the trustees named in that deed. On May 22, 1934, after notice duly given, the property was sold under this second deed of trust to the defendant Rothchild.

The first question presented on the appeal is whether the title acquired 'by the plaintiff through the sale under the first deed inures to the beneficiary under the second deed. The precise question is one which has not been determined in any authority brought to our attention. The case most closely touching it is

Jensen

Duke,

71 Cal. App. 210 [234 Pac. 876]. There the plaintiff, having executed a deed of trust covering certain real property, sold the land to Margaret Duke and took from her a mortgage to secure the purchase price. The property was sold under the deed of trust, and Duke subsequently acquired it from the purchaser. She sold to the defendants, and the question raised was whether the mortgage lien admittedly extinguished by the trustees’ deed was revivified by the purchaser’s deed to Duke, the mortgagor. Relying upon section 2930 of the Civil Code, which reads: ‘‘ Subsequently acquired title inures to mortgagee. Title acquired by the mortgagor subsequent to the execution of the mortgage, inures to the mortgagee as security for the debt in like manner as if acquired before the execution,” the court held: “Though defendant Margaret Duke lost title by reason of the trust sale to Abbott, she again acquired title under Abbott’s deed to her, and the title, thus acquired, inures ‘to the mortgagee as

Barberi v. Rothchild

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NOURSE, J.,

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