Clough v. All Persons

[269]

CHIPMAN, P. J.

This is an action to quiet title to land in the city and county of San Francisco under the so-called McEnerney Act. Plaintiff had judgment as prayed for in his complaint from which defendant Williams, as administratrix, appealed. She also appealed from the order denying her motion for a new trial.

When the case was called for trial defendant Williams (appellant here) requested that the cause be heard before a jury. “The Court: I have read the pleadings and I am of the opinion that the defendant is not entitled to a jury and I therefore deny the demand for a jury trial and order that the trial proceed before the court.”

Appellant says in her brief: “The only point raised on this appeal is that of the refusal of the right to a jury trial. ’ ’

It appears that “plaintiff acquired the title under a trust deed set forth in full in the complaint, the recitals of which showed the grantors to be all the tenants in common, owners of the land, and the interest of each; that the Hibernia Savings and Loan Society held a first mortgage covering all the interests, and a second mortgage covering a part of the interest; also several other mortgages to other parties covering a part of the interests; that the Hibernia Savings and Loan Society had, under the power in its mortgage, advertised the property for sale, to pay the debt due to it; that all the tenants were desirous of a partition sale, payment of the mortgages and division of the remainder.

“The trust-deed provided that the trustee should go into possession—and it is alleged that he did—and instituted proceedings to have the title established under the McEnerney Act; and that he should lease the property to Chas. W. Lentz, from month to month until sold, at a fixed rental; that at any time prior to March 5, 1911, said Chas. W. Lentz should have the right to purchase at a fixed price, payable to the trustee, and upon failure of said Lentz to purchase, then the trustee should sell the property; that from the moneys received by the trustee after paying his expenses and fee, he was to pay off the first mortgage to the Hibernia Savings and Loan Society, and the balance of the money should be paid as in the trust-deed directed.' ’

Prior to the execution of the trust-deed Fagan, appellant’s intestate, made a deed to defendant Minnie Tucker of his sixteen-thirtieths interest. She signed the trust-deed, as did