Miller v. Citizens Trust & Savings Bank

KING, J.,

pro tem.

This action is to quiet title.

J. W. Roman and Quida Roman, his wife, on May 21, 1925, executed a deed of trust to a bank later merged into defendant Citizens Trust and Savings Bank, as trustee for Charles Stone, beneficiary. June 26, 1925, Stone assigned to defendant Brian K. Welch. Defendant John D. Beyer as trustee in bankruptcy for Beverly Ridge Company, a copartnership, received a grant deed from J. W. Roman and wife dated January 29, 1927. The deed of trust from Roman and wife was recorded June 29, 1925.

One E. P. Erwen brought an action to foreclose a claim of lien against the property involved, and after default by the above-named Citizens Bank, J. W. Roman and his wife and Charles Stone, a judgment ivas entered in the action foreclosing his claim of lien against all of these named defendants. The property was sold by the sheriff under a

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writ of enforcement in this last-mentioned action and said E. P. Erwen, plaintiff therein, became the purchaser. Thereafter, on May 3, 1926, the certificate of this sheriff’s sale was recorded. On April 19, 1927, plaintiffs redeemed the property from said sale, and thereafter, no redemption having been made by any defendant, the sheriff executed to plaintiffs a deed for the property.

Judgment in the instant case was for plaintiffs, and defendants appealed.

Appellants urge three grounds for a reversal:

1. That the trust deed was executed prior to the accrual of the mechanic’s lien, and takes precedence over the mechanic’s lien.

2. That section 1186 of the Code of Civil Procedure does not apply to trust

deeds;

and,

3. That the complaint in the case of

Erwen

v.

Roman et al.,