Oaks v. Weingartner

VAN DYKE, J.

This is an appeal from a judgment which denied to plaintiff his claim that his materialman’s lien was superior to the lien of a deed of trust securing certain advances made after the recordation of the deed of trust. On October 2, 1945, Hartley L. and Nellie 0. Weingartner executed to John and Catherine Pehau, respondents herein, a deed of trust. The instrument recited that it was given as security for the repayment of a loan of $4,178 borrowed by the trustors

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as evidenced by a promissory note in that amount concurrently executed. The instrument contained provisions that it was also to secure the repayment of “any further or additional loans (not to exceed in the aggregate the sum of $_to be evidenced by a note or notes therefor) made by said party of the third part to said party of the first part, and all interest thereon, and as security to the parties of the second part, or the survivor of them, their successors and assigns, and to the party of the third part and his assigns, for the payment of the said other moneys, with the interest thereon, herein agreed or provided to be paid by the said party of the first part.” Thereafter respondents made additional advances and loans to the Weingartners, each of which was evidenced by a promissory note until by July 25,1947, total additional advances had been made aggregating $11,000. Each note evidencing an additional loan contained the statement that it was secured by the deed of trust, but these notes did not appear of record. The deed of trust was recorded November 10, 1945. Between January 10, 1949, and May 8th of that year appellant furnished to the Weingartners materials consisting of concrete and gravel in the reasonable value of $806.57. These materials not having been paid for, he filed his claim of lien for the amount thereof and brought this action to foreclose the lien. By appropriate allegations he alleged that his lien was superior to the lien of the deed of trust save for the original loan of $4,178.

In support of his appeal appellant contends as follows : That when the respondents recorded the deed of trust they were not, either by its terms or at all, obligated to make any additional advances; that the language we have quoted from the deed of trust respecting future advances amounts to a declaration against further advances so that when appellant, before furnishing materials to the Weingartners, examined the deed of trust as recorded he could assume and did assume that it secured nothing more than the original sum loaned; that he was under no duty to inquire further but could proceed upon the security of the lien he would have if his bill was not paid and he perfected his lien in the statutory manner. In support of this contention appellant lays stress upon the parenthetical clause “not to exceed . . . $_,” appearing in that portion of the deed of trust which we have quoted. He says that by not filling in the blank after the dollar sign in the parenthetical clause the entire provision relative to further advances was nullified. We do not so construe the