TITLE GUARANTEE TRUST CO v. MONSON (1937)

The defendants have appealed from a judgment awarding the plaintiff $6,768.36. They contend, in effect, the findings do not support the judgment, and that under the facts no liability existed against them. We think the contention is well founded.

Plaintiff framed its complaint in four separate counts. In the first it pleaded the facts, in the second it pleaded an action for money had and received, in the third it pleaded the existence of an account and asked for an accounting, in the fourth it pleaded a wrongful withholding of the possession of real property and prayed for damages.

In pleading its first count the plaintiff alleged that it was a corporation; that on the 6th day of September, 1928, Joseph P. Stein and wife executed 140 promissory notes aggregating $145,000 in favor of American Mortgage Company, and to secure the payment thereof they executed to plaintiff a trust deed on certain lots and the improvements thereon in the city of Los Angeles; that after the recordation of said deed, the owners by mesne conveyances transferred the property to these defendants, Charles E. Monson and Nellie Monson, his wife, “* * * subject to the terms and conditions of said deed of trust”; that the building on said property is a six–story apartment house containing seventy separate apartments which for a consideration are rented to the public; that on the 6th day of June, 1932, the interest due on the above–mentioned notes was not paid; that by the terms of said deed of trust on the happening of said default plaintiff in its discretion was authorized to enter upon and take possession of the trust estate, exclude the trustor therefrom, and to operate and control the business of the trust estate and to collect the rents, issues, and profits thereof; that it elected to take and hold possession of said trust estate, and on the 29th day of July, 1932, in writing, it demanded of the defendants that they deliver possession of said estate to the plaintiff; that on the 10th day of August, 1932, it commenced an action against the defendants to specifically enforce the terms of said deed of trust; that on the 17th day of November, 1932, it obtained a judgment that since the 29th day of July, 1932, it was entitled to the possession of the above–mentioned property, that these defendants forthwith deliver such possession to the plaintiff, and that plaintiff recover its costs; that notwithstanding the terms of said deed of trust and the terms of said judgment, the defendants continued in possession of said property until February 28, 1933; that between July 29, 1932, and the 28th day of February, 1933, defendants collected rents, issues, and profits in the sum of $22,228.50 and still withhold the same; and that plaintiff has been damaged in said sum. The contents of each of the other counts are mentioned above. The action was tried before the court sitting without a jury. The trial court made findings that the plaintiff had been damaged in the sum of $5,533.27, and from a judgment based on those findings the defendants have appealed.

The defendants complain as to the amount of the judgment against them. This contention they present in several different attacks. They quote from the complaint allegations showing or tending to show that the first action was one in specific performance; that is, an action in equity. They then argue that when the court of equity took jurisdiction of the controversy it did so for all purposes and it must be assumed if any damages were claimed that such issue was determined against the plaintiff and it may not now be made the basis of another action. If, as contended by the defendants, the action commenced in Los Angeles county was an action in specific performance, the contention of the defendants must be sustained. 23 Cal.Jur. 516. At this time the plaintiff claims said action was a tort action brought to recover possession. But in its complaint in the instant case, it alleged that said action was in specific performance; that the plaintiff obtained a judgment; and it pleaded the judgment in haec verba. These defendants, by failure to deny, admitted all of those allegations. The trial court made findings that all of said allegations were true and, in its judgment in the instant case, adopted and incorporated said allegations and findings. On the trial the plaintiff introduced in evidence a certified copy of the judgment in the Los Angeles action. No other portions of the judgment roll in that action are set forth in the record in the instant case. The judgment will be construed with reference to the law regulating the rights of the parties. Watson v. Lawson, 166 Cal. 235, 241, 135 P. 961. On its face the said judgment in the Los Angeles action shows that it was a judgment in specific performance as these defendants contend. That the plaintiff was, under the facts, entitled in the Los Angeles action to file a complaint asking specific performance is settled law. American Securities Co. v. Van Loben Sels, 218 Cal. 662, 24 P.(2d) 499. And it is clear that under the facts it had the right to name, among others, as defendants, Mr. and Mrs. Monson, who purchased the property subject to the deed of trust after the deed had been executed and recorded. 58 C.J. 921.

In view of the conclusion we have reached on the point just discussed, it is not necessary to discuss any other points made in the briefs.

The judgment is reversed.

STURTEVANT, Justice.

We concur: SPENCE, Acting P. J.; GOODELL, Justice pro tem.