Griffith v. List

NOURSE, P. J.

Plaintiff sued to impress a trust upon real property. The cause was tried upon an agreed statement of facts and judgment was entered for plaintiff decreeing that he had a 47.4 per cent interest in the real property and in the money deposited in court under a judgment in a prior action, and that he should have an accounting from defendant. A motion for a new trial was made by defendant and denied, but the trial court modified the judgment and awarded plaintiff $17,986.20 and decreed that he had no interest in the real property and was not entitled to an accounting. Both parties have appealed from his judgment and, to avoid confusion, we will hereafter refer to them as plaintiff and defendant.

In this opinion we will consider the points raised- on defendant’s appeal only as our conclusion on that appeal is that the judgment must be reversed, hence plaintiff’s criticisms of the modifications of the judgment are of no moment.

On September 14, 1924, one Marcher, while indebted to a number of individuals, conveyed the real property in suit to McLaughlin and Yermille, as trustees, by deed absolute in form. The property was then subject to a mortgage in favor

[127]

of Title Insurance & Trust Company for $24,000, and to a deed of trust in favor of Earnest for $8,000. The deed to McLaughlin and Vermille was given as security for payment of the claims of special creditors and was recorded. At the same time McLaughlin and Vermille executed a declaration of trust, which was not recorded. On November 3, 1924, Marcher filed an action against these named creditors to have it declared that the deed to McLaughlin and Vermille was in fact a mortgage. In that action plaintiff’s assignor, one Hale, was joined as a party defendant. In that action all the defendants except Hale joined in a cross-complaint seeking to foreclose said deed as a mortgage. Judgment was entered in favor of these cross-complainants on July 3, 1925, for $53,469.65. On July 22, 1926, judgment was entered in favor of the Title Insurance & Trust Company foreclosing its mortgage and, under this judgment, the property was sold to one Pinney on August 30, 1926, for the sum of $75,000. After the title company’s judgment had been satisfied the balance of the purchase price, $45,484.97, was deposited in court. The defendant purchased all the rights of the judgment creditors in the suit first mentioned, and, on September 14, 1926, upon an order of court made for that purpose, drew the sum so deposited. From this fund she paid the sum of $7,539.40, in satisfaction of the deed of trust held by 'Earnest and used the balance, with $16,000 of her own money, to pay the holders of the judgments against Marcher. On November 10, 1926, defendant redeemed the property from the foreclosure sale under the title company’s judgment, paying therefor $82,053.