Porter v. United States Fidelity & Guaranty Co.

NOURSE, J.

Plaintiff commenced this suit in equity to quiet title to certain real property, to require defendants to give up a certain trust deed which they held upon said property, and to restrain them from asserting any claim thereto. The record is presented upon the judgment-roll alone. It shows that findings of fact and conclusions of law were signed by the trial judge and filed on the twenty-second day of July, 1920, and that on the same day judgment in favor of defendants was duly entered. It also appears that on August 24, 1920, other findings were signed and filed by the same judge at the request of plaintiff and that a judgment similar in effect to that already entered was then signed and filed. No proceedings had been taken to set aside the judgment of July 22, 1920, and what is said herein relating to the findings of the trial court refers to the findings of fact bearing date July 22, 1920.

It appears that a judgment in the sum of ten thousand dollars and costs was entered against one William E. McPherson in his lifetime and that to procure a stay of execution pending his appeal said McPherson induced the surety company to execute a surety bond. To indemnify the surety company against loss the said McPherson conveyed to the individual defendants in trust for the purposes of such indemnity the lot of land which is the subject of this suit. The title to the property was then vested in McPherson, free of all liens except a mortgage of five thousand dollars. Pending the appeal to the supreme court from that judgment McPherson died, leaving as his heirs a daughter, the plaintiff in this case, and a son. The latter was appointed administrator of the estate, and in the course of his administration was met with a demand by the owner of the mortgage for the payment thereof. The estate was without funds sufficient to pay the mortgage and, in order to save it from loss, the administrator arranged for a new mortgage for a like amount, but to accomplish this it was necessary to procure a-release of the estate granted by the deed of trust in order that the new mortgage should be a prior lien. For this purpose thé defendants were persuaded

[403]

to execute a quitclaim deed releasing their lien under their deed of trust, and, as a part of the same transaction, received from the administrator a new deed of trust, which he was authorized to execute by order of the probate court. Some time thereafter the estate became involved in further financial trouble and desired to raise an additional sum of three thousand dollars. The holder of the mortgage above mentioned expressed a willingness to advance such additional sum provided that he be given a first lien for the full amount of his loan. For this purpose the administrator again approached the defendants and requested them to re-convey the estate granted to them under the deed of trust, in order to enable him to raise the funds necessary for the protection of said estate. A quitclaim deed was again executed, a new mortgage for three thousand dollars was placed on record, and thereafter a new deed of trust was executed by the administrator for the benefit of these defendants. In both instances before the administrator executed these deeds of trust he obtained an order of the probate court authorizing him to do so. Such order was made on a petition filed for that purpose, of which presumably all interested parties had notice. Thereafter the judgment appealed from by McPherson was affirmed by the supreme court and, the administrator of the estate and this plaintiff having refused defendants’ demand for payment, the full amount of the judgment and costs was paid by the defendants. When the second deed of trust above referred to was executed this plaintiff and her brother, as the sole heirs of William E. McPherson, held the title to the premises in question. Prior to the execution and delivery of the third deed of trust the brother transferred his interest to plaintiff.