Livingston v. Rice

[2]

MUSSELL,

J.-—This is an action to foreclose a second deed of trust on residential property in the city of Bakersfield. There is no dispute as to the material facts.

On February 14,1947, defendant Rice and his wife executed a promissory note payable to plaintiff in the sum of $4,000 for money loaned to Rice. The note was secured by a deed of trust of the same date and both instruments were then delivered to the plaintiff. The note was not paid when due and plaintiff took it with the deed of trust to an attorney to commence foreclosure proceedings. The deed had not been recorded or acknowledged and plaintiff secured the acknowledgment of Rice and his wife on January 19, 1951, and on the same day recorded the deed of trust. On December 4, 1951, this action to foreclose was filed and defendant V. Sechini filed an answer in which she claimed an interest in the property described in the deed of trust by reason of a judgment which she had secured against Rice and his wife on April 4, 1950, which was for the sum of $6,345.89, plus interest and costs. She further alleged and it is not disputed that on April 14, 1950, she recorded an abstract of this judgment in the office of the county recorder of Kern County. There is no dispute as to the amount still unpaid and owing to plaintiff on his note and to defendant Sechini on her judgment.

The trial court found that the note to plaintiff and the deed of trust were executed February 14, 1947, and was acknowledged and certified so as to entitle it to be recorded on January 19, 1951, and was recorded on that date; that the sum of $3,964.06, with interest, costs and attorney’s fees was due plaintiff thereon. The court further found that the defendant V. Sechini claims to have some interest or claim upon the premises described in the complaint as judgment creditor, which interest or claim is subsequent to the lien of the deed of trust of plaintiff referred to in said complaint. A decree of foreclosure and order of sale was rendered. A commissioner was ordered appointed and she was directed to pay any surplus money, after applying the proceeds of sale to plaintiff’s indebtedness, into court

“to

abide the further order of the court.”

The principal contention of appellant is that the abstract of judgment is a lien upon the property involved and having been recorded prior in time to the deed of trust, is superior to the claim of plaintiff. This contention is without merit. In