Mayhall v. Eppinger

CHIPMAN, C.

Defendants demurred to plaintiff’s complaint for want of facts sufficient to constitute a cause of action. The demurrer was overruled, and, plaintiff declining to amend, defendants had judgment, from which plaintiff appeals.

It is alleged in the complaint that plaintiff executed and delivered to defendant H. Eppinger, Jr., his promissory note, and at the same time executed to said defendant a trust deed to certain land to secure the payment of said note; that after the maturity of the note Eppinger commenced an action by a verified complaint against this plaintiff and his wife, alleging therein that said deed was given as a mortgage; that in the prayer Eppinger asked that the defendants therein be foreclosed of their right of redemption in said premises; that in an amended complaint in said action said Eppinger alleged

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as follows: “That the said so-called trust deed is incompetent and defective in that the same designates no person as party of the third part herein, and by the terms of said instrument there is no person given power to request, ask for, or demand the sale of said premises to satisfy the claim of plaintiff; that the plaintiff did not accept the trust herein mentioned, but received the same only as security for the payment of the note aforesaid.” The complaint in the present action proceeds : “That said Eppinger, trustee named in said trust deed, has wholly denied and repudiated the trust named in said trust deed; that the action so commenced by H. Eppinger, Jr., against this plaintiff and wife is still pending;” that since filing the complaint Eppinger has assigned the note to defendant Frost. It is alleged that Eppinger’s suit to foreclose was commenced March 23, 1898, and that on August 20, 1898, " claiming to act under the authority of said trust deed, and claiming to be the owner in fee of the lands described in said trust deed, he advertised said lands for sale at public auction on the twenty-fourth day of October, 1898.” It is alleged that Eppinger will sell said lands and execute a deed therefor unless restrained by the court, and that such deed will be a cloud on plaintiff’s title. The prayer is for judgment that said Eppinger and Frost are not, nor is either of them, owners of said lands “in fee nor trust, nor as trustees, nor as beneficiaries”; that defendants be restrained from asserting any title as owners or trustees or beneficiaries; that Eppinger be restrained from selling said lands, and for general relief.