Foellmer v. Midway Lime & Cement Co.

PRESTON, P. J.

Action to quiet title to real property in the city of Los Angeles. After trial, a decree and judgment was entered quieting plaintiff’s title to the property in question. From this judgment, the defendants Fred Ship

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ley, E. E. Locke and Steller Bros. & Skoog, a copartnership, have appealed.

The facts are briefly these: On December 1, 1926, the property in question was owned by Miss Leora Ward and was unimproved vacant property. On that day Cavaglieri Mortgage Company agreed to loan her not exceeding $3,500 to be used in the erection of a dwelling upon said property. A mortgage for $3,500 was executed and recorded before any work was commenced on the building. This agreement between Miss Ward and the Cavaglieri Mortgage Company provided that $1,000 of said sum was to be advanced when the building was ready for plastering, $600 when all plastering was completed, $800 when said building was completed and the balance of $1100 to be advanced thirty-six days after notice of completion was filed. The agreement further provided that the mortgage company was under no obligation to make any advances, except the first, unless the building was erected; and further provided that in case of abandonment, the mortgage company could, but they were under no obligation to do so, use the balance of the funds on hand for the purpose of completing the building.

After the execution of this agreement and first mortgage, and on December 6, 1926, Miss Ward executed and delivered to Cris J. Foellmer, the plaintiff, and respondent herein, a deed of trust on said real property to secure the payment of a promissory note for $1,081. This deed of trust was duly recorded on December 10, 1926. After the deed of trust was executed and recorded, the appellants, who are lien claimants, began the furnishing of materials for the erection of said building. Default was made in the payment of said note secured by said deed of trust, and by reason of said default, the trustee under the deed of trust, caused said property to be sold and respondent became the purchaser and on December 31, 1927, received a deed.

No claim is made by any of the appellants that any materials were furnished for said building prior to the date of recordation of said deed of trust. In fact, appellants stated that the lien of Steller Bros. & Skoog attached to the property March 1, 1927, and that Shipley and Locke’s lien attached April 7, 1927.