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BARROW v. SANTA MONICA BUILDERS SUPPLY CO. et al.†
This is an appeal by defendant Santa Monica Builders Supply Company from a judgment entered in favor of the plaintiff in a quiet title action. It is contended that certain findings made by the trial court and the judgment entered thereon are not sustained by the evidence. On January 2, 1925, Anna E. Corya, owner of the real property in question, executed a trust deed in favor of Dell H. Stewart, beneficiary, to secure her note in the principal sum of $1,600. This deed of trust was recorded on January 6, 1925, and the note was later assigned to one R. S. Ross. A default arising in connection with payments due under the trust deed, foreclosure was had, and on February 20, 1926, the property was sold by the trustee, Title Guarantee & Trust Company, to respondent John V. Barrow. It was stipulated at the trial of this cause that the title and fee in said property were vested in the plaintiff, John V. Barrow, under and by virtue of this trustee's deed unless divested by the judgment and sale entered and made in the two mechanics' lien foreclosures immediately hereinafter mentioned. Anna E. Corya and Dell H. Stewart had been named defendants in two actions filed in the superior court of Los Angeles county, one on June 12, 1925, in which the appellant here, Santa Monica Builders Supply Company, was plaintiff, and the other on June 16, 1925, in which Olson Lumber Company appeared as plaintiff. Each of these actions was brought to foreclose a mechanic's lien. While the respondent was not named as a party defendant in either of said actions, he was served as defendant “First Doe” in the Olson Lumber Company suit. No answer was filed by the respondent in either action, nor did he enter his appearance. Neither was he present, either personally or by representation, at the trial of the actions, which, by order of the court, were consolidated for trial. In the Santa Monica Builders Supply Company suit the only allegation as to the interest of the defendants named therein was as follows: “That defendants and each of them have or claim to have some interest in or claim upon said premises or some part thereof as purchasers, mortgagees, judgment creditors or lien claimants, or otherwise. That said claims or interests in said property of said defendants are subject and subordinate to the claim of plaintiff.” In the Olson Lumber Company suit, the allegation set forth that the various defendants “have or claim to have some right, title or interest in, to, or upon said premises, the exact nature of which is unknown to this plaintiff, but the plaintiff alleges that the claims of each and all thereof are subsequent and inferior to the claim of this plaintiff.”
Answers were filed in each of these mechanics' lien actions by the defendants Corya and Stewart, and although the respondent was not served in the Santa Monica Builders Supply Company suit, his default was ordered entered in the consolidated actions, and by the judgment entered therein, on November 20, 1928, it was decreed:
“That plaintiffs have a lien on the hereinafter described real property for the aforesaid claim for materials.
“That the claim of plaintiffs herein are prior to those of defendants herein, and the claims of defendants Anna E. Corya, Dell H. Stewart, * * * Title Guarantee & Trust Company, a corporation, and John V. Barrow, are subsequent and subordinate to the claims of plaintiffs herein.”
No findings of fact were made in the consolidated actions or in either of them, although the following language did appear in the decree: “The court finding the allegations of plaintiffs' complaint herein are true.”
On May 27, 1930, the property was sold to satisfy the mechanics' liens, by the commissioner appointed by the court, a certificate of sale then being issued to Santa Monica Builders Supply Company for $1,480, the amount of liens and costs. The commissioner's deed on foreclosure was issued to the Santa Monica Builders Supply Company almost two years later, January 29, 1932, and recorded the next day in the office of the county recorder. Within a few months, that is, on April 28, 1932, the present quiet title action was instituted, and it was tried on June 29, 1933.
Although, as has been stated, the respondent did not appear in either of these actions and never was served in one of them, the appellant feels that all respondent's rights in the real estate were effectively terminated by the judgment rendered in the suits brought to enforce the mechanics' liens, and particularly because Dell H. Stewart, the beneficiary named in the deed of trust, denied that he had any interest in the property; but, as we have noted, Mr. Stewart had disposed of his interest under the trust deed by assignment to Ross. Ross later foreclosed under the deed of trust, and respondent bought the property at the trustee's sale. As we have mentioned, the trust deed was recorded on January 6, 1925; the complaint in foreclosure of the Olson Lumber Company lien states that “this plaintiff began to furnish and deliver certain materials on the 8th day of January, 1925.” The date on which the Santa Monica Builders Supply Company began to furnish materials does not appear in the complaint to foreclose that lien, but regardless of the exact time at which the lien in either of these cases attached, we think the appeal must fail under the principles alluded to in Beronio v. Ventura County Lumber Co., 129 Cal. 232, 61 P. 958, 79 Am.St.Rep. 118, which case, according to Dobbins v. Economic Gas Co., 182 Cal. 616, 623, 189 P. 1073, 1076, laid down “the established rule, repeatedly followed in this state, that a foreclosure suit cannot properly be turned into a suit to quiet title.” Hartfield v. Howard, 180 Cal. 376, 181 P. 385; Bank of America v. Radford (Cal.Sup.) 60 P.(2d) 119. See 18 Cal. Jur. 447, 448.
It cannot be said that in the suits to enforce mechanics' liens against this property the parties, including this respondent, voluntarily proceeded to litigate the question of title; therefore the decree entered under the lien foreclosures, “that the claims of plaintiffs herein are prior to those of defendants herein,” cannot be considered a binding and final adjudication, as contended by appellant.
The judgment is affirmed.
DESMOND, Justice pro tem.
We concur: HOUSER, P. J.; YORK, J.
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Docket No: Civ. S. C. 18.
Decided: January 28, 1937
Court: District Court of Appeal, Second District, Division 1, California.
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