Mitchell v. Price

KERRIGAN, J.

This is an action for a writ,, of

mandamus.

In the month of August, 1903, A. J. McVean was the owner of the real property described in the complaint, and in that month he executed a mortgage e thereon to the Kern Valley Bank for the purpose of securing payment of a promissory note in the sum of one thousand dollars. Thereafter, and prior to August, 1905, he conveyed the property to the Buckeye Refining Company, a corporation, which on the first day of that month executed to Luther Allen a deed of trust thereof as security for the payment of bonds to the amount of twelve thousand dollars, to be issued by the Buckeye Refining Company, and which were in fact issued to the extent of ten thousand dollars. Neither McVean nor said corporation paid the note given by the former to the Kern Valley Bank, and the corporation also defaulted in the payment of principal and much of the interest which became due upon said bonds. At some time prior to the month of February, 1908, the bank commenced an action to foreclose its mortgage, and obtained judgment, under which in the said month of February, 1908, the defendant George W. Price, the commissioner in said foreclosure suit, sold the property at public sale, the Kern Valley Bank becoming the purchaser thereof.

[161]

In December, 1908, an action was commenced to foreclose the deed of trust by John Mitchell, the plaintiff herein, in which he alleged the death of Luther Allen and the appointment of himself as the successor of said trustee, and that such action was commenced by him in his capacity as trustee and also as one of the owners and holders of bonds secured by said trust deed, and in behalf of and for the benefit of all the bondholders. In that action judgment was entered in favor of the plaintiff and against the trustees of said Buckeye Refining Company, then a defunct corporation for the amount due, with appropriate recourse against the security. In the meantime, and within one year after the sale under the bank’s foreclosure suit, the plaintiff herein, as trustee and bondholder as aforesaid, on his own behalf and that of his fellow bondholders, offered in writing to redeem said property from said sale, and at the same time tendered to said commissioner the full amount due upon said judgment in favor of the Kern Valley Bank. The commissioner refused to accept the tender or to give to the plaintiff a deed to the property, whereupon the amount of money so tendered was deposited by the plaintiff in the Bank of Bakersfield, a bank of good financial standing, and written notice of said deposit was served upon the defendant. A duplicate of the notice of redemption was also filed with the county recorder.