Brereton v. Burton

THOMPSON, J.

From a decree declaring that plaintiffs’ judgment lien against certain lots in Turlock is subordinate to a mortgage lien held by the defendants the plaintiffs have appealed.

This is a suit for declaratory relief under the provisions of section 1060 of the Code of Civil Procedure. The facts are not disputed. Most of the essential facts were contained in a written stipulation which was received in evidence. It includes the following facts: Prior to March 27, 1925, Helen Frances Rowe, a widow, owned the north half of lot 8 and lots 9 and 10, block 323, of the city of Turlock, county of Stanislaus. March 9, 1925, to secure a loan procured from the defendants, Mrs. Rowe executed and delivered to the defendants her promissory note for the sum of $2,200 secured by a trust deed of even date therewith upon the lots above described. The trust deed was duly recorded March 27, 1925. January 7, 1926, the plaintiffs recovered judgment against Mrs. Rowe for the sum of $911.59. January 7, 1931, the plaintiffs commenced an action against Mrs. Rowe to renew the last-mentioned judgment. Judgment was rendered for the plaintiffs in that action September 25, 1935, for the amount of the original judgment together with interest and costs aggregating the sum of $1545.42. Neither the trust deed nor the said judgment was satisfied, except that Mrs. Rowe paid defendants $200 on account of her indebtedness to them. To renew her former note and trust deed in favor of the defendants, Mrs. Rowe executed and delivered to them her promissory note February 12, 1932, for the sum of $2,000 secured by her trust deed upon the above-described lots, which deed was also duly recorded.

The evidence discloses the following facts: Mrs. Rowe was never able to make any payments whatever on her indebtedness to the defendants represented by her note for $2,000

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and trust deed upon the lots in question. The defendants were not aware of the judgment lien which the plaintiffs claimed against the property. An attorney by the name of Cornell represented Mrs. Rowe. The defendants interviewed Mrs. Rowe in the spring of 1936, seeking to obtain a settlement of her indebtedness to them. She told them she was not able to pay them a cent of the indebtedness. She advised the defendants to see her attorney, Mr. Cornell, who might arrange to refinance the loan. They subsequently talked with Cornell, who confirmed his client’s statement that she was unable to pay any part of the debt, but he suggested that she might be persuaded to deed to them the property in question, in settlement of her debt. The defendants told Cornell the property was not worth more than the indebtedness, and that they did not want it, but that if that was the best they could do, they might accept a deed to the property