Brush v. E. R. Bohan & Co.

FINCH, P. J.

This is an action to quiet title. Judgment was entered in favor of the plaintiffs and defendant Blue Diamond Company has appealed. The following statement of facts is taken substantially from the appellant’s opening brief:

Bespondents were originally the equitable owners of the premises, “having purchased them on contract from G-. Allen Hancock.’’ Thereafter the respondents “assigned said contract of sale to Seth Cheesman,” to whom Hancock conveyed the premises. “Cheesman then put a first mort

[459]

gage of $10,000 upon the premises ... to aid the financing of a dwelling thereon.” The consideration for the assignment by respondents to Cheesman was the sum of $3,250, to secure the payment of which Cheesman executed a deed of trust, conveying the premises to a trustee, which instrument contained the following: “This deed of trust is second and subject to a mortgage filed concurrently herewith, in amount of $10,000.” Cheesman informed the respondents “that he was buying the lot to build a flat on, and that he was borrowing $10,000 for the purpose of building this flat.” Cheesman did not let a contract for the erection of the building, but built it himself. The appellant furnished materials which were used in the construction of the building and duly filed a lien for the amount of its claim for such materials. Cheesman defaulted in payment to the plaintiffs and the trustee sold the property to them to satisfy the indebtedness.

From the foregoing facts appellant contends that an inference arises that Cheesman was merely the respondents’ contractor, that they conveyed the property to him “for the purpose of financing the erection of a flat building thereon” and then causing the property to be sold under the deed of trust and buying it themselves, thereby destroying the rights of lien claimants. If the facts are as stated, it is to be regretted that the appellant did not produce some proof thereof at the trial, for there is no evidence in the record to warrant such an inference. Fraud and bad faith are not to be presumed in the absence of evidence thereof.

“If recorded before any work is done or materials are commenced to be furnished, a trust deed is in the ordinary course of things prior to mechanics’ liens.” (25 Cal. Jur. 52;