Swain v. Stockton Savings & Loan Society

Appeal from a judgment of the Superior Court of San Joaquin County.

In December, 1884, Thomas Cornwall and wife were indebted to the Stockton Savings and Loan Society in the sum of nineteen thousand seven hundred dollars. This indebtedness was evidenced by their promissory note payable to the defendant, and to secure the payment of said note and interest, and any advances of money that the defendants might make to them, they granted, bargained, sold, and conveyed to L. U. Shippee and F. M. West, in trust, a certain tract of land described in the complaint in this action. The parties to this deed are Cornwall and wife of the first part, L. U. Shippee and F. M. West of the second part, and the Stockton Savings and Loan Society of the third part. This deed was properly executed and recorded. Thereafter, in the month of September, 1885, one H. M. Fanning recovered judgment in the superior court of the county of San Joaquin against the said Thomas Cornwall and wife and others, which was duly docketed by the clerk of said court. On the fifteenth day of October, 1886, execution issued upon said judgment, and under and by virtue thereof the sheriff levied upon, and on the fifteenth day of November, 1886, sold to the plaintiff in this action, all the real estate of Cornwall and wife, being the same land conveyed by them in trust to L. U. Ship-pee and F. M. West. The plaintiff, at the time he became the purchaser of said real estate, received from the sheriff the usual certificate of sale. On the day of the sale and purchase, there was due and unpaid from Cornwall and wife to the defendant, on their promissory note and deed of trust, some twenty-four thousand dollars. Upon receipt of certificate of sale, the plaintiff tendered to the Stockton Savings and Loan Society the amount due from Cornwall and wife, and demanded of the defendant that, he “be subrogated to all the benefits of the defendant, of •its said lien under said deed of trust.” The defendant refused to comply with this demand, but offered to receive the money, and carry out and perform, on its part, all the covenants and conditions of the deed of trust, and that the trustees named in said deed, upon the receipt of the money, would reconvey the real estate therein described to the said Cornwalls. The plaintiff thereupon deposited the money, in the name of the defendant, with a bank of good repute, and gave a written notice thereof to the defendant, and on the twenty-fifth day of February, 1887, brought this action to be subrogated to all the benefits of the defendant, under the deed of trust, and compel the defendant to deliver the deed, and all evidence of indebtedness which it held-against the Cornwalls under the deed. The case was tried by the court, and judgment passed for the plaintiff, subrogating him to all the rights and benefits of the defendant under the deed of trust, and commanding the defendant to deliver to the plaintiff the deed, and all evidence of indebtedness held against said Cornwalls secured thereby. The defendant appeals from the judgment on the judgment roll. Section 2904 of the Civil Code, under which the action was brought, provides that “one who has a lien inferior to another upon the same property has a right: 1. To redeem the property in the same manner as its owner might from the superior lien; and 2. “To be subrogated' to all the benefits of the superior lien, when necessary for the protection of his interest, upon satisfying the claim secured thereby.” The further facts are stated in the opinion.