Barrow v. Santa Monica Builders Supply Co.

NOURSE, J., pro tem. On January 2, 1925, the owner of the real property which is the subject of this action to quiet title executed a trust deed in favor of one Stewart, which deed was recorded on January 6, 1925, and the note secured thereby was later assigned to one Ross. On February 20, 1926, the property was sold under foreclosure by the trustee to Barrow, who is the plaintiff and respondent herein. Some time during the month of January, 1925, materials were furnished for the construction of a building upon the premises out of which liens attached which were foreclosed in a proceeding in which Barrow was served as a defendant “First Doe”, and the trustee and the beneficiary were both sued and served. Those actions were commenced in June, 1925, and were consolidated for trial. No answer was filed by Barrow or by the trustee, and their defaults were entered. The beneficiary answered disclaiming any interest in the property. Judgment was entered against all the defendants sued therein decreeing that their claims or interests in the property were subject and subordinate to the claim of the mechanics’ liens. On May 27, 1930, the property was sold to satisfy these mechanics’ liens, and the Santa Monica Builders Supply Company became the purchaser. On April 28, 1932, Barrow commenced this action to quiet title and had judgment decreeing that he was the owner in fee of the property and that none of the defendants had any interest therein.

The appeal is on a bill of exceptions. There is no substantial controversy as to the facts. The single question involved is whether a lien claimant whose interests were determined in a former suit to foreclose a mechanic’s lien can thereafter attack that decree in a suit to quiet title. A determination of the question involves the question whether, in a suit to foreclose a mechanic’s lien, other lien claimants may be joined and the priority between the liens determined. The judgment herein rests upon the decision in Beronio v. Ventura County Lumber Co., 129 Cal. 232 [61 Pac. 958, 79 [603]Am. St. Rep. 118], and similar eases holding that a foreclosure suit cannot be turned into a suit to quiet title. The appellants herein argue that the rule of those cases is not applicable here because their foreclosure suits did not involve any question of adverse title but sought only a determination of priority between existing lien claimants. When the consolidated actions to foreclose the mechanics’ liens Avere tried the priority of those liens over the “right, title and interest” of all the defendants therein was put in issue. Aside from the question of adverse or paramount title the “interests” of defendant Barrow depended upon the determination of the question whether his lien was prior in right to those of the plaintiffs. If the building which formed the basis of the mechanics’ liens was commenced before the deed of trust was recorded those liens would be preferred over any lien arising out of the deed of trust. (See. 1186, Code Civ. Proc.; Sax v. Clark, 180 Cal. 287, 290 [180 Pac. 821]; Sun Lumber Co. v. Bradfield, 122 Cal. App. 391, 395 [10 Pac. (2d) 183].) The determination of the question of the priority of the various liens depended in part upon the determination of the question when the various liens attached and, though the defendant Barrow did not appear therein and findings Avere waived by those appearing, the decree recited that the claims of all the defendants (expressly naming Barrow) were “subsequent and subordinate to the claims of plaintiffs herein”. This was an adjudication of the priorities which was just as effective as though it were based on findings of fact that the work of the lien claimants was commenced before the deed was recorded, and that those liens attached prior to the lien of the deed of trust. It is conceded that if this were true the mechanics’ liens would be superior to the other. But the respondent now argues the court made a mistake in its. former decree, and that he should now be permitted to show in this proceeding that his deed was in fact recorded before the work commenced, and that his lien was therefore prior in right to that of the plaintiffs’ in the former actions.