Citizens' Bank of Los Angeles v. Los Angeles Iron & Steel Co.

CHIPMAN, C.

Foreclosure of deed of trust. Plaintiff had judgment, from which the defendant, the Los Angeles Iron and Steel Company, appeals. The only question presented relates to the correctness of the order overruling the demurrer of defendant and appellant, the steel company.

On May 1, 1894, the steel company executed a trust deed to the National Trust Company, as trustee, to secure the payment of the principal and interest of certain "bonds amounting to thirty thousand dollars, payable in ten years, and interest coupons payable semi-annually. On September 25, 1897, plaintiff brought this action, alleging that it was the owner of five thousand dollars of these bonds and of the attached coupons maturing May 1, 1895, and thereafter; foreclosure was asked for the unpaid interest only, but the complaint was framed so as to authorize the sale of the entire mortgaged property under section 728 of the Code of Civil Procedure. It was alleged that plaintiff was ignorant of the number of the bonds outstanding and the owners thereof; that the trustee had been requested to bring the suit, but had refused to do so, and that payment of the coupons had been demanded more than six months prior to the commencement of the action. An accounting was asked as to the number and ownership of the outstanding bonds and coupons.

1. The only alleged ground of ambiguity or uncertainty is that the complaint fails to show what proportion of the bonds alleged therein to have been issued by the steel company is owned and held by plaintiff, or was so held at the time it demanded of the National Trust Company, trustee under the deed of trust, to bring the suit to foreclose. This demand was made August 15, 1897, and the complaint was filed September 25, 1897, and the allegation is that plaintiff “is the owner”—• i. e., was the owner—at the filing of the complaint.

Whether plaintiff in fact owned any bonds at the time it" made the demand of the trustee to bring the suit, and, if so, how many, might be important as matter of defense should its

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ownership at that time be denied. Bnt we do not think the failure to allege that plaintiff made known to the trustee the number of bonds held by plaintiff when the demand was made would be such uncertainty as would justify a reversal of the judgment. The complaint did allege the fact of ownership of certain described bonds; the trustee was made a party defendant and answered, and in its answer it stated that it refused to bring the suit for the sole reason that a majority of the bondholders had not in writing requested it to bring the suit. Defendant and appellant, the steel company, answered the complaint denying plaintiff’s ownership of any bonds, and this issue was determined at the trial, and the fact was found to be that plaintiff was the owner of certain bonds and coupons as alleged in the complaint. A judgment on the merits will not be reversed on a demurrer for uncertainty and ambiguity under the circumstances as disclosed here.