Fighiera v. Radis

SHAW, J.

The plaintiff appeals from the judgment. The record on appeal consists of the judgment-roll alone.

[661]

On October 26, 1914, plaintiff owned a certain promissory note executed by one Woodford, to Ray Zug, for thirty thousand dollars, due January 29, 1917, and secured by a trust deed executed to the Title Guarantee & Trust Company for certain parcels of land. The land was subject to a prior mortgage for twenty-nine thousand dollars. On October 26, 1914, plaintiffs borrowed money from the defendant, in consideration of which they executed to defendant their promissory note for seven thousand dollars, payable four months after date. At that time default had been made in the interest on the thirty thousand dollar note, and plaintiff had caused the trustee to advertise the land for sale. It was agreed between the plaintiffs and defendant that the land should be sold by the trustee under the power contained in the trust deed, that defendant should purchase the lands at such sale and receive a deed therefor from the trustee as security for the note and certain other debts, and should thereupon execute a contract stating the terms on which he was to hold the same as security for the seven thousand dollar note and other debts of plaintiff. This is the transaction which gave rise to the controversy involved in this suit. The land was sold under the trust deed, the defendant became the purchaser by a deed dated November 28, 1914, and thereafter on December 1,1914, executed the contract in question. This instrument recited the conveyance of the property to defendant and declared that he held it in trust on the terms therein stated, among which were that he should make such advances as he deemed necessary for the protection and care of the property, that such advances should be a lien on the same, that if the above-mentioned note of plaintiffs to defendant and a certain other note made by the plaintiffs to a third party were not paid, the defendant was thereupon authorized to sell the property after publishing a notice of sale for a specified time, and that out of the proceeds he should pay all his costs and advances and the two notes above mentioned and render the surplus to the plaintiff. The present action is a suit against the defendant for an accounting of his proceedings under the declaration of trust and for a reconveyance of the property to the plaintiffs on payment of the amount found to be due. In substance and effect it is an action to redeem the property from the liens secured by the declaration of trust.