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District Court of Appeal, Fourth District, California.


Civ. 2190

Decided: January 17, 1939

Mayock & Lester of Los Angeles, for appellant. W.W. Kaye, of Los Angeles, for respondent.

Plaintiff has filed a petition for rehearing and with great sincerity urges that this court has misstated the law of this state and has held that the judgment of foreclosure of the mortgage given to defendant's predecessor in interest bound plaintiff's predecessor in interest who was not a party to the foreclosure proceeding. Such was not the holding of this court and that question was not before us for decision.

Defendant claimed title to five of the mining claims under a mortgage that was recorded in Inyo county on November 2, 1933. Defendant claimed under the lien of a judgment obtained in Los Angeles county and recorded in Inyo county on November 6, 1933. The action was to quiet title in the plaintiff to six mining claims, and under a cross-complaint to quiet title in defendant to five of those claims. The ultimate question to be decided in the trial court is the validity of these respective conflicting claims of title. This involves priorities of recordation and notices of the respective liens as well as the legality of the two proceedings which resulted in the judicial sales.

The plaintiff was permitted to prove his title. Defendant was prevented from proving whatever title he may have had by objections of counsel for plaintiff which were sustained by the trial judge. We held these rulings to be prejudicially erroneous and the judgment for plaintiff was reversed for that reason.

On a retrial of the case the trial court will determine the question of which party acquired the paramount title to the property. The question is one of priority of liens and paramount title in which the fact of the failure to join the junior lienholder as a defendant in the action to foreclose the prior lien of the mortgage is only one of the questions to be considered.

The petition for rehearing is denied.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.

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