181 P. 385 | Cal. | 1919
Judgment was rendered in favor of the plaintiff foreclosing his mechanic's lien. He appeals from *377
that portion of the decree adjudicating his lien to be subsequent to the interest of the defendant Title Guarantee
Trust Company. The complaint contained the allegation: "That all of the defendants claim to have some interest or estate in said property and parcel of land, but this plaintiff is informed and believes, and therefore alleges on information and belief, that said claims are subject to and subservient to plaintiff's claim." The defendants, Title Guarantee Trust Company and Fidelity Savings Loan Association, joined in an answer containing the following allegation: "Said defendants, Title Guarantee Trust Company, and Fidelity Savings Loan Association, admit that they have and claim to have some interest in the real property described in plaintiff's complaint, and allege that the interest of said defendants therein is prior and superior to that of said plaintiff." Findings were waived. No evidence was introduced upon the subject of the interest or title of the Title Guarantee Trust Company in the premises. Appellant claims that, as the burden of proof was upon this defendant to establish its prior claim, the portion of the judgment appealed from is erroneous. This conclusion is sustained by the opinion in Harmon v. Ashmead,
[3] A decree adjudicating the priority of defendant's lien or interest without evidence or pleading justifying such decree was erroneous. *380
It is stated in respondents' brief that the only interest of the Title Guarantee Trust Company was as trustee in the trust deed securing the indebtedness due to the defendant Fidelity Savings Loan Association, which lien was by the decree declared to be prior to plaintiff's claim, and from which adjudication no appeal was taken. It appears from the bill of exceptions that the defendants introduced in evidence a contract signed by appellant recognizing the prior existence of the trust deed, in favor of the defendant Fidelity Savings Loan Association, and expressly agreeing that the claims of the lien claimants, including the lien of appellant, should be subject to and subordinate to the claim of the Fidelity Savings Loan Association, but this agreement fails to disclose the name of the trustee in the trust deed. Strangely enough, appellant denies knowledge of the fact stated by respondents. We cannot, therefore, consider such statement in determining this appeal. For the same reason it is unnecessary to consider the argument of the respondent based upon the hypothesis that even if the Title Guarantee Trust Company were the trustees in a trust deed securing the payment of money, such deed was nevertheless subordinate to respondents' lien. In order to correct the judgment so that there will be no adjudication upon the claim of the Title Guarantee Trust Company, the court is directed to modify the judgment by striking out the fifth paragraph thereof and to insert in lieu thereof the following, to wit: "And it is further ordered, adjudged and decreed that the said claim of the plaintiff was at the time of the commencement of this action and this judgment and decree in that behalf were and are prior and superior to any right, title, interest, or estate of the defendants Charles W. Howard, Hunziker Berger (a copartnership), E.P. Hunziker, E.C.A. Bergei, Mary W. Crutsinger, Josephine Hunziker and W.W. Paden, and each of them, in or to said premises and the whole thereof, but that said claim of the plaintiff herein and this judgment and decree in that behalf was and is subsequent and subservient to the interest of the defendant Fidelity Savings Loan Association (a corporation), which said last-named defendant's interests are superior to said claim of the plaintiff herein; provided that nothing in this judgment shall be construed or held to prejudice or affect the rights of the Title Guarantee Trust Company accruing *381 prior to the date when the plaintiff's lien attached to the property."
As so modified the judgment is affirmed.
Melvin, J., and Lennon, J., concurred.
Hearing in Bank denied.
All the Justices concurred.