Fox v. California Title Insurance

NOURSE, P. J.

Plaintiff sued to quiet title to real property and had an interlocutory judgment giving defendants the right to redeem the property from a previous sale. Defendants declined to redeem and a final judgment was entered for plaintiff. The defendants appeal on typewritten transcripts from both judgments.

Plaintiff, when owner of the property, mortgaged the same to one Olsen in the sum of $2,500, and then sold to McDonald for $6,250 subject to the mortgage. McDonald assumed the mortgage and delivered to Fox a promissory note in the sum of $3,250 as part of the purchase price. This note was secured by a trust deed made subject to the prior mortgage. Thereafter Fox assigned said note and deed of trust to Olsen without recourse. The latter commenced suit to foreclose the original mortgage purposely and intentionally failing to join the trustee or the beneficiary under the trust deed. Olsen obtained judgment for $2,964.94 and, after due notice, the sheriff sold the property to Fox at public auction for $3,036.95, which was the full amount of the judgment with interest and cost. Thereafter Olsen died and Belle Stofer was duly appointed as his administratrix.

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She recorded notice of default and intention to foreclose said deed of' trust and plaintiff then commenced this proceeding to quiet title, joining as defendant with her the Title Company as trustee under said deed.

Though extensive briefs have been written and numerous points stated the single question of law involved is whether a junior mortgagee who was not made a party to the suit to foreclose a senior encumbrance, may exercise any greater right after sale than the right of redemption, there being no surplus as a result of the sale. If this question is answered in the negative, as the trial court answered it, then the equities are all with the respondent and the judgments should be'affirmed.

The right of junior lienholder, upon foreclosure of a superior lien, is the right to redeem. (Code Civ. Proc., sec. 701; Civ. Code, secs. 2903, 2904;

Carpentier

v.

Brenham,