Milstein v. Security Pacific National Bank

Opinion

THOMPSON, J.

This is an appeal from an interlocutory order of the trial court decreeing, over the objection of appellant, beneficiary of a deed of trust, that $19,085 of a deposit in court in an eminent domain proceeding be distributed to respondents, trustors and landowners, and from a final order of apportionment decreeing that the entire proceeds of the condemnation award be distributed to respondents. We dismiss the appeal from the interlocutory order and affirm the final order of apportionment.

Respondents are the owners of commercial property in the County of Los Angeles. On April 19, 1965, they executed a deed of trust of the property to defendant Equitable Trust Company to secure an indebtedness of $50,000 to Security First National Bank, predecessor in interest to- appellant Security Pacific National Bank. The deed of trust provides that respondents convey the subject real property in trust to defendant Equitable Trust Company “For The Purpose Of Securing (1) Payment of the sum of $50,000.00 with interest thereon according to the terms of a promissory note or notes of even date herewith, made by Trustor, payable to the order of Beneficiary [Security First National Bank] . . . ; (2) Performance of each agreement of Trustor herein contained; (3) Payment of any and all obligations now or hereafter owing from any Trustor hereunder to Beneficiary and secured by mortgage or deed of trust of real property. ...” The printed portion of the deed of trust states in darker and larger print than its body, “To Protect The Security Of This Deed Of Trust, Trustor Agrees;.” There follow three numbered paragraphs obligating the trustor to preserve the property and maintain it in good repair, including the duty “To complete or restore promptly and in good and workmanlike manner any building or improvement which may be constructed, damaged or destroyed . . . and pay when due all costs incurred therefor . . to make all payments and perform all acts called for by the deed of trust, and to' repay all sums “expended hereunder” by the beneficiary or trustee. In the same larger and darker print, the deed

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of trust provides, “It Is Mutually Agreed That:.” There follow printed paragraphs (4) through (19). Paragraph (4) reads in pertinent part: “Should the property or any part thereof be taken or damaged by reason of any improvement or condemnation proceeding, . . . Beneficiary shall be entitled to all compensation, awards, and other payments or relief therefor, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement in connection with such taking or damage. All such compensation, awards, damages, rights of action . . . are hereby assigned to Beneficiary, who may after deducting therefrom all its expenses, including attorney’s fees, release any moneys so received by it or apply the same on any indebtedness secured hereby.”