Compton Investment Co. v. Fred Barman Co.

STURTEVANT, J. The plaintiff commenced an action against numerous defendants to collect a deficiency accruing to the plaintiff on the foreclosure of a deed of trust. The trial court sustained the demurrers of certain defend[225]ants without leave to amend. From the judgment in favor of those defendants the plaintiff has appealed.

A. Hart, as beneficiary, conveyed to the Bank of America, as trustee, lands in Los Angeles County. The lands included a large number of lots as shown by a certain map. At the same time Hart executed a note in favor of this plaintiff, Compton Investment Company. By the terms of the declaration of trust the lots were to be sold and the proceeds applied to the payment of the plaintiff’s note. The beneficiary also undertook to pay such charges as interest, taxes and costs of improvement. Thereafter the beneficiary, A. Hart, assigned all of his interest under the declaration of trust to the Fred Barman Company. Later the Fred Barman Company assigned fractional interests to Alex Williams, Marguerite Brown, Fred Barman and Lester L. Robinson.

In the declaration of trust, among other provisions, are the following: “Third: The beneficiary hereunder hereby covenants and agrees to pay all indebtedness secured hereunder, all taxes and assessments now a lien upon or hereafter levied or assessed against said property including second instalment of taxes for the year 1928-29 before the same become delinquent and to pay for any and all costs of said work or improvements of any kind whatsoever made or done by him or procured by him to be done on said property and that he will not permit the cost of any improvement to become a lien thereon; and said beneficiary further covenants and agrees to pay when due all other claims, liens and encumbrances affecting the title to the property covered hereby, all costs, charges, interest, penalties on account thereof; . . . The terms, provisions and conditions hereof shall bind and inure to the benefit of the respective parties hereto, their heirs, executors, administrators, successors and assigns respectively . . . The undersigned named in the foregoing declaration of trust as beneficiary does hereby approve, ratify and affirm the same in all its parts and does hereby agree to be bound by all the terms thereof, and to do and perform all of the respective obligations therein provided to be paid, done or performed by him.” In accepting the assignment to it the acceptance of Fred Barman Company was in words and figures as follows: “Fred Barman Company, a corporation, does [226]