Godfrey v. Monroe

Paterson, J. Action to quiet title.

In September, 1886, Ellis, the owner of the land in controversy, by deed of trust, conveyed the land to Edward A. Hall, authorizing the latter to sell the property in said deed described, and out of the proceeds pay the indebtedness due from Ellis to the Los Angeles Improvement Company. On December 30, 1886, Hall executed and delivered to said improvement company a deed, grant, bargain, and sale in form, but as a part of the same transaction an agreement was entered into between Ellis, party of the first part, Hall, party of the second part, and the Los Angeles Improvement Company, party of the third part, the terms of which states that the party of the first part, by and with the consent of his trustee, to secure payment of an indebtedness amounting to the sum of eleven thousand eight hundred and sixty-five dollars and fifty-five cents, evidenced by notes and orders, had caused to be conveyed to the third party the property described in the deed of trust of September 24, 1886. It was provided therein that as soon as said improvement company “shall have received their pay in full as above stated, and shall be fully reimbursed for such payments as the said J. W. Ellis shall cause them to expend under his orders during the continuance of this contract, which sums shall be payable out of the receipts of the sale of said lands, then the Los Angeles Improvement Company shall deed to said J. W. Ellis the balance of the property remaining unsold.” On April 25, 1887, the defendant, J. P. Monroe, in an action against Ellis caused an attachment to be levied upon the property in controversy. On September 29, 1887, Ellis conveyed the land to the plaintiff’s grantor, and on the day following the Los Angeles Improvement Company executed and delivered to Ellis a quitclaim deed of the property. On October 12, 1887, the defendant Monroe recovered judgment against Ellis in the attachment suit, and a sale of the property upon execution followed in February, 1888.

It is claimed by appellant that the sale under the [227]judgment recovered by the defendant against Ellis did not relate back to the time of the attachment, because at the time said attachment was levied the legal and equitable title of the property was in a trustee of Ellis; that an attachment can operate only upon the interest of a defendant at the time the attachment is levied, and not upon any interest he subsequently acquires in the property affected by it.

Inasmuch as under our codes any interest, legal or equitable, which a defendant has in lands is subject to attachment (Code Civ. Proc., secs. 542, 688), and notwithstanding the fact that every express trust in real property vests the whole estate in the trustees, subject only to the execution of the trust, the author thereof may prescribe to whom the real ¡property to which the trust relates shall belong in the event of the failure or termination of the trust, and may transfer or devise such property, subject to the execution of the trust, it would seem that the contention of the appellant is unsound; but we do not deem it necessary to consider the question discussed in the briefs, as to whether after the execution and delivery of a deed of trust the grantor retains any attachable interest. The deed from Hall to the Los Angeles Improvement Company, and the agreement accompanying the same, constituted a mortgage with a power of sale—the transaction was consummated by a deed with a separate defeasance authorizing the improvement company to sell so much of the land as might be necessary to pay the amount of the loan, interest, and charges, and to reconvey to Ellis the property remaining unsold. This .form of security is no longer looked upon with disfavor, and our statutes expressly authorize mortgages conferring the power of sale upon the mortgagee or other person. (Civ. Code, sec. 2932.) The power given is merely a cumulative remedy, and does not in any way affect the right to foreclosure in chancery. (Cormerais v. Genella, 22 Cal. 116.) If there be any doubt as to whether an instrument was intended as a mortgage or a deed of trust, such doubt should be