No. 3768 | 9th Cir. | Aug 7, 1922
(after stating the facts as above). It is contended that the trust deed is void, for the reason that it is an attempt by a single instrument to create both a mortgage and a deed of trust and to operate as either at the election of the grantee. That question is not open to discussion in the present controversy. That the instrument is a trust deed has been determined by the decree of a
Nor does the fact that, after the commencement of the action to enjoin proceedings under the trust deed, the trustee brought a suit to foreclose the instrument as a mortgage, in any way affect the merits of the present case. Having obtained in the injunction suit a judgment defining the instrument as a trust deed, the trustee yery properly dismissed the foreclosure suit. The judgment of dismissal is in no sense res judicata of any question involved herein.
The appellants contend that of the land involved in the present suit certain described tracts, amounting in all to 1,700 acres, were not included in the lands described in the trust deed, and that therefore the appellants took title to those parcels unaffected by the provisions of the trust deed. But the trust deed contained provisions expressly designed to cover all other property of whatever kind and character then owned by the .grantor, and all property of every kind and character thereafter to be acquired by the grantor during the existence of the trust. Those provisions are sufficiently inclusive to embrace all of the said 1,700 acres.
There can be no doubt that the court*below properly dismissed the complaint for want of equity. The appellants, without tendering payment of the obligation which their grantor assumed in executing the trust deed, or offering to pay the same, are asking a court of equity to remove the cloud of the trust deed and the sale thereunder, and to quiet their title to property for which they paid a grossly inadequate consideration. It is fundamental that in such a case the complainant must offer to do that which is equitable. The offer is obligatoryj notwithstanding that the statute of limitations may have run against the debt. Upon these principles the authorities are in accord. 5 R. C. L. 664. We had occasion to apply them in Power & Irrigation Co. v. Capay Ditch Co., 226 F. 634" court="9th Cir." date_filed="1915-10-04" href="https://app.midpage.ai/document/power--irrigation-co-of-clear-lake-v-capay-ditch-co-8797053?utm_source=webapp" opinion_id="8797053">226 Fed. 634, 141 C. C. A. 390. In California they have been settled by numerous decisions. Raynor v. Drew, 72 Cal. 308, 13 P. 866" court="Cal." date_filed="1887-05-20" href="https://app.midpage.ai/document/raynor-v-drew-5442974?utm_source=webapp" opinion_id="5442974">13 Pac. 866; Baker v. Firemen’s Fund Ins. Co., 79 Cal 34, 21 P. 357" court="Cal." date_filed="1889-04-23" href="https://app.midpage.ai/document/baker-v-firemans-fund-insurance-5444008?utm_source=webapp" opinion_id="5444008">21 Pac. 357; Hall v. Arnott, 80 Cal. 348" court="Cal." date_filed="1889-09-03" href="https://app.midpage.ai/document/hall-v-arnott-5444228?utm_source=webapp" opinion_id="5444228">80 Cal. 348, 22 Pac. 200; Burns v, Hiatt, 149 Cal. 617, 87 Pac. 196, 117 Am. St. Rep. 157.
The decree is affirmed.