Camp v. Land

HENSHAW, J. These appeals are from the judgment and from the order denying a new trial. To secure payment of his promissory note plaintiff Camp had executed a mortgage upon certain realty to defendant Land. Afterward, being indebted to the National Bank of D. O. Mills & Co., he executed to trustees in its behalf a deed of trust to the same land affected by the mortgage. This deed was in the form commonly used in this state and frequently considered by this court.

Land brought suit to foreclose his mortgage, impleading the Camps, husband and wife, the bank, its trustees under the deed of trust, and others. The bank and its trustees answered, averring the debt due the former from Camp, and setting forth the trust deed. The priority of Land's mortgage lien was conceded, but the trustees' interest under their deed was asserted to be superior to the claims of all other defendants. The prayer was, that the decree establish this fact, and that if upon the sale of the land any money remained after payment of plaintiff's just demands, it be applied in extinguishment or reduction of the debt due the bank.

Mrs. Camp answered this pleading. She denied that the bank was a corporation organized under the laws of the United States, and denied the indebtedness of her husband to the bank. She alleged a violation of the law by the bank in making the loan and accepting the security. She set up the filing by her of a declaration of homestead affecting fifty-four acres of the mortgaged premises, and asked that the land if sold be sold in parcels, reserving the homestead portion until the last.

The court found in favor of plaintiff, and in favor of the defendant bank and its trustees. It decreed the sale of so much of the land as might be necessary to pay the demand of plaintiff, and directed that the sale be made by parcels.

It proved necessary to sell all of the land to extinguish plaintiff’s debt. The homestead portion brought three thousand seven hundred and forty-eight dollars and sixty cents. Land was the purchaser.

In time plaintiffs brought this action asking to be allowed to [169]redeem the homestead from the sale. Land answered denying their right, and by cross-complaint pleaded title in fee in himself, and sought a decree quieting his title. Upon the trial plaintiffs offered and secured the admission in evidence of the judgment-roll in Land v. Camp et al., and rested their case. Defendant and cross-complainant, by the parol evidence of the bank’s president, received without objection, proved the organization of the National Bank of D. O. Mills & Co. as a national bank under the laws of the United States, and established the additional fact that for many years before and after the execution of the trust deed it had done business as a national bank. The deed of trust was admitted in evidence over plaintiffs’ objections and exception. The default of Camp, the trustor under the deed, was shown, and also a sale of the property to defendant according to its terms. The judgment of the court passed for defendant, and quieted his title against the claims of the plaintiffs.