Dunphy v. Guaranty Building & Loan Assn.

STURTEVANT, J.

In an action brought to quiet title and to recover damages the trial court granted a motion for a nonsuit against the plaintiffs and made findings in favor of Guaranty Liquidating Corporation, the intervener, quieting its title. From the judgment entered the plaintiffs have appealed.

[421]

Heretofore one Fields sold and conveyed to Osear L. Bishop certain acreage in Los Angeles County which was platted and subdivided as Tract 3874. Among others it contained lot 9. After acquiring title, the grantee mortgaged lot 9 to one Lehmann for $4,000. On July 21, 1923, Bishop conveyed to Helen Barnard. She conveyed to C. F. and M. L. Higgins. The latter conveyed to these plaintiffs on January 4, 1928. Helen Barnard .purchased the lot for $8,500 (sic). She paid $1,000 down. She assumed the mortgage for $4,000. She made a second mortgage in the sum of $3,750. She agreed to pay and did pay $100 per month for about two years when she sold to Mr. and Mrs. Higgins. The latter paid $1,000 down and executed a trust deed for $7,750 to secure a loan from Guaranty Building and Loan Association, which, in turn, paid off the two encumbrances, one for $4,000 and one for $3,750. In 1928 the plaintiffs bought the lot from Mr. and Mrs. Higgins. They paid $700 down and assumed the encumbrance. They executed another note and trust deed and the first one was canceled. The debt.so evidenced was made payable $75 per month. After taking title they made their payments until October, 1930, when they ceased and since then they have made none. The trust deed hereinabove last mentioned was made to North American Bond and Mortgage Company as trustee to secure the note in favor of Guaranty Building and Loan Association.

On December 23, 1930, A. N. Kemp was appointed receiver of Guaranty Building and Loan Association. After he qualified as such receiver the note and trust deed constituting the evidence of the encumbrance on the property came into his posséssion. He caused the obligation to be foreclosed. At the sale he bid in the property for $3,500 and received a deed therefor. Later he conveyed it to Guaranty Liquidating Corporation.

On April 20, 1931, this action was commenced. The plaintiffs named as defendants Guaranty Building and Loan Association, the beneficiary under the deed of trust. North American Bond and Mortgage Company, the trustee, and A. N. Kemp, the said receiver. All defendants answered and put in issue all of the material allegations of plaintiffs’ complaint. Still later Guaranty Liquidating Corporation intervened. In its complaint it set forth a cause of action in the ordinary form asking that its title be quieted and that it be