Security-First National Bank v. J. D. Millar Realty Co.

PRESTON, J.

Defendant J. D. Millar Realty Company, a corporation, was indebted to plaintiff bank in the sum of about $60,000, which indebtedness was secured by an express trust to sell certain real property, designated in the record as trust No. 6280 and also by a similar trust designated in the record as trust No. 5155. Defendant and appellant Steele is a junior lien claimant on the real property affected by trust No. 6280. Plaintiff brought this action to foreclose said trusts as equitable mortgages and in addition prayed for the direction of a court of equity as to the marshaling of the moneys resulting from a sale of said real property. Said realty company, said W. R. Steele and several others were made defendants and all of them, including said Steele, defaulted or else disclaimed interest. A decree of foreclosure and sale and marshaling of assets followed as prayed. Said defendant W. R. Steele alone appealed.

Appellant has filed a perfunctory brief which does not comply with the provisions of rule V, subdivision 3 (Rules of the Supreme Court), regarding a statement of the legal questions involved. Appellant, however, does concede that said decree of foreclosure and order of sale thereunder were properly entered. He makes no offer to discharge the prior lien or to otherwise do equity in the premises. His sole ground of complaint is that the provisions of the decree giving so-called declaratory relief are in excess of the prayer of the complaint. This contention is plainly without a semblance of merit.

The complaint, in this connection, contained the following allegations: “Furthermore, that said plaintiff is unable

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to determine, without a declaratory court decree, the chronological order in which the plaintiff may sell and apply the proceeds from trusts 6280 and 5155, respectively, in satisfaction of the said $65,000 note referred to in trust 6280, on which there remains an unpaid balance of $55,066.54, inasmuch as the defendant W. B. Steele appears to have a junior lien against J. D. Millar Bealty Company under trust 6280, but has no interest under trust 5155. That the plaintiff cannot safely proceed with the foreclosure of the defendants’ interest in and to the trusts 6280 and 5155 and interest in the real estate therein described, if any, until the court by a proper decree construes and determines the respective rights of the plaintiffs and the defendants in said trusts.”