Potter v. Lawton

KNIGHT, J.

This is an appeal by plaintiff from a decree entered in a suit instituted by him as partial assignee of a promissory note and deed of trust to establish his interest therein and to obtain certain other relief. The trial court by its findings determined the extent of plaintiff’s interest, but by its decree did not grant the full relief

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sought and for that reason plaintiff contends that the decree is erroneous.

The complaint alleged that Fred L. Kernes and wife executed to W. J. P. Lawton and wife their promissory note for the sum of $1230, secured by a deed of trust, naming Central Title Company, Inc., as trustee; that the Law-tons assigned to plaintiff a $750 interest in said note and trust deed; and on information and belief it was alleged in paragraph III of the complaint that Louis Horning and wife were then the owners of the real property covered by the trust deed, and were ready, able and willing to pay said note, and desired to have the property released from the lien of said trust deed; that they had offered to pay the amount due upon the surrender of the note and the execution of a reconveyance of the property, but that the Lawtons had refused to authorize such reconveyance unless the whole amount due on the note was paid to them. The prayer of the complaint was that the court by its decree establish the extent of plaintiff’s interest in said note and trust deed and require the Lawtons to deliver said note and trust deed to the court; that the Hornings be allowed to pay the amount due on said note and trust deed into court, and that thereupon it be decreed that said Title Company execute and deliver to the Hornings a reconveyance of said property and that said note be canceled; that of the sum so paid into court plaintiff receive $750 with interest and costs.

The Lawtons and the Title Company demurred to the complaint upon numerous grounds, among them being that there was a defect of parties defendant in that the Kernes, the makers of the note and trust deed, were not made parties defendant. The demurrers were overruled, and thereafter the Lawtons and the Title Company answered, denying among other things the allegations of paragraphs III and IV of said complaint. There was no appearance in the action at any time by the Hornings, and the trial proceeded on the issues raised by said answers.