Imhoff v. Title Insurance & Trust Co.

WOOD (Parker), J.

Action to quiet title to personal property (proceeds of sale of real property under a trust deed), and for declaratory relief. Judgment was for plaintiffs and defendant Martin. Defendant Swenson appeals from the judgment.

Appellant contends that his materialman’s lien is prior to plaintiffs’ alleged lien under a deed of trust for future advances of money.

On October 20, 1947, Merle J. Olson executed a promissory note for $1,300 and a trust deed covering two lots on Summit Avenue in Long Beach. The note was payable to parties other

than

plaintiffs, and the deed recited that it was made for the purpose of securing the indebtedness evidenced by

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the note and “payment of such additional sums with interest thereon, as may be hereafter borrowed from Beneficiary by the maker of said note, when evidenced by another promissory note.” The deed also recited that: “The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not named as Beneficiary herein.” The trust deed was recorded on October 30, 1947.

On May 13, 1948, the beneficiaries under the trust deed assigned it and the note to the plaintiffs herein, husband and wife. The assignment "was not recorded. Also on said May 13th Olson executed his promissory note for $1,140.32 (payable to plaintiffs) and a second trust deed covering the said two lots as security for the payment of the note. The second trust deed was recorded on July 8, 1948. Thereafter plaintiffs lent Olson additional sums of money as follows: $1,000 on June 1, 1948; $500 on July 25, 1948; and $500 on November 9, 1948. Olson executed promissory notes for said amounts. At the top of the note for $1,000 there is handwriting as follows: ‘ First Trust Deed on property at 1518 W. Summit as Security. Long Beach, Calif.”

On August 20, 1948, Olson executed another trust deed covering said lots to secure payment of his note for $1,075 which was payable to defendant Martin. Said trust deed was recorded on August 23, 1948.

On February 24, 1949, the appellant (Swenson) recorded a notice that he claimed a mechanic’s lien upon the lots. On May 24, 1949, he filed an action against M. J. Olson, One Doe and Two Doe to foreclose the lien. In the complaint (Exhibit 10) it was alleged that appellant (plaintiff therein), under an agreement with Olson, began to furnish plumbing material and labor on said property on June 18, 1948; that he completed said plumbing on November 18, 1948; and that $1,200.49 was due appellant for said material and labor. No further proceeding was had in that action.