9 Cal. 2d 601 | Cal. | 1937
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
The position of respondent cannot be sustained. All presumptions support the former decree, and hence it must be presumed that if findings had been made in that action they would have been consistent with the portion of the decree declaring that the lien of the respondent was subsequent and subordinate to the mechanics’ liens. (2 Cal. Jur. 852.) This
The respondent argues that this view is contrary to the established rule of Beronio v. Ventura Lumber Co., supra, and similar eases, that “a foreclosure suit cannot properly be turned into a suit to quiet title”. The Beronio case was one to foreclose an ordinary mortgage. It was there held that the object of such a suit was to subject to judicial sale the same title or estate which the mortgagor had at the time of the execution of the mortgage. But it was also held that the only proper or necessary parties to such a suit are the mortgagor “and those who claim an interest in the property derived subsequent to the date of the mortgage”. That case was discussed at length in Dobbins v. Economic Gas Co., 182 Cal. 616, 624 [189 Pac. 1073], where it was said that the “extent” of the lien and whether other claims were subordinate to it were proper issues to be tried in a foreclosure proceeding. A distinction was there made between a claim of title which was adverse to the mortgagee and a claim of lien which was subject to the mortgage, and it was said that (p. 624), “It would seem as if it were one of the proper functions of a foreclosure suit to determine what it is which can be and is foreclosed.” In Bewick v. Muir, 83 Cal. 368, 371 [23 Pac. 389], a suit to foreclose a mechanic’s lien where one of the defendants claimed under a prior mortgage, the court said: “The question as to the priority of this mortgage over the plaintiffs’ liens was a material one.” Whitney v. Higgins, 10 Cal. 547-551 [70 Am. Dec. 748], is a case closely parallel. There the plaintiff was the purchaser under a sale upon a decree in foreclosure of a mortgage, and the defendant claimed as a purchaser under a similar decree in a suit to enforce a mechanic’s lien. The mortgagee was not made a party to the suit to enforce the mechanic’s lien and for that reason it was held that he could
For these reasons it is of no importance that the respondent herein did not volunteer to litigate his title in the foreclosure suits. It is sufficient that he was sued and served with process and that he had full opportunity to tender the issue of priority as between his lien and that of the plaintiffs in those actions. The complaints in those actions are not models of good pleading, but they were sufficient at the time to inform the defendants therein that the priorities of the various liens were to be litigated. The determination of that issue is binding in this action notwithstanding the parties may have omitted to urge for or against it matters which if urged would have produced an opposite result. When an issue is litigated and a party is given his day in court it is
The judgment is reversed.
Langdon, J., Edmonds, J., Seawell, J., Shenk, J., Waste, C. J., and Curtis, J., concurred.
Rehearing denied.