Bard v. Standard Mortgage Corp.

NOURSE, P. J.

Plaintiff sued in equity to restrain the sale of real property under foreclosure of a trust deed and to compel the marshaling of assets held by defendant California United States Bond & Mortgage Corporation. Plaintiff also asked for declaratory relief. Prom a judgment for defendants the plaintiff appeals on typewritten transcripts.

The conclusion of the trial court that plaintiff was not • entitled to a marshaling of the assets was based upon findings of fact which are not attacked upon this appeal. No part of the evidence touching this issue is printed, hence the question on this appeal becomes solely a question of the legal soundness of this conclusion based upon facts as found, and is to be determined in the same manner as if the appeal were taken upon the judgment-roll.

Upon this issue the trial court found:

That on July 25, 1927, the record title to the property was in defendant Leroy Montgomery; that prior to that time he had executed a deed conveying the property to John IT. Coverley; that this deed had been delivered but was not recorded until December 4, 1928; that prior to July 25, 1927, Coverley had negotiated with Armstrong and Wright and, as a result thereof, the premises were leased by Montgomery to Armstrong and Wright for a period of twenty-five years at a total rental of $425,000; that Armstrong and Wright agreed to erect an apartment house on the premises, and for that purpose, obtained a loan of $315,000 from the Mortgage Guarantee Company secured by a deed of trust covering both the fee and the leasehold interest; that thereafter a second loan in the sum of $105,000 was made by Coverley, secured in the same manner, and Wright entered into a contract with appellant whereby the latter agreed to construct an apartment house on the premises for the sum of $545,000; that thereafter Wright executed a series of promissory notes in the total sum of $125,000 in favor of appellant, all of which were secured by deed of trust

covering the leasehold interest alone,

and all of which were made subordinate to the liens of the $315,000 and $105,000 loans which covered both the fee and the leasehold; that as a part of the arrange

[511]