Crist v. House & Osmonson, Inc.

SHENK, J.

The plaintiff sued to quiet title to certain improved real property purchased by him at a trustee’s sale.

[557]

From a judgment in his favor the defendant Harriett L. Cowell appealed.

The property is situated in Palo Alto in Santá Clara County. Harriett L. Cowell was the owner thereof prior to December 12, 1929. On that date she deeded it to the defendant House & Osmonson, Inc. The latter executed a first deed of trust of the property to secure a note for $6,000, also a second deed of trust to secure a note for $3,000. The property deeded to the company and as described in the deeds of trust was irregular in shape and for purposes of illustration its boundaries may be called briefly as follows: From the point of beginning northerly 57½ feet; easterly 112½ feet; southerly 14 feet; easterly 12½ feet; southerly 25 feet; westerly 50 feet; southerly 18 feet; and westerly 75 feet to the point of beginning. The small rectangular portion measuring 12½ by 25 feet on the easterly end of the property was purchased by the United Artists Theatre for $750 in January, 1931, for the purpose of adding it to the adjoining lot. The holders of the first and second deeds of trust duly executed reconveyances, thus releasing the piece sold from the lien of the trust deeds.

In April, 1932, the plaintiff purchased the $3,000 note and second deed of trust. Upon default in the payment of that note the trustee under the second trust deed pursuant to the provisions thereof sold the property to the plaintiff for the sum of $300 subject to the lien of the first deed of trust. On the sale proceedings, however, the trustee erroneously advertised for sale the entire property including the 12% by 25 foot strip theretofore released.

In the meantime in February, 1932, Harriett L. Cowell, the former owner, had commenced an action against her grantee to have the deed canceled on the ground of fraud, and at the same time she filed for record a notice of

lis pendens.

After the sale of the property to him the plaintiff brought the present action to quiet title to the property involved exclusive of the 12% by 25 foot strip sold to the theatre. Harriett L. Cowell, the only defendant answering, sought by a cross-complaint to have title quieted in the defendant House & Osmonson, Inc., subject to her equitable claims. Judgment went for the plaintiff and this appeal followed.