100 P. 698 | Cal. | 1909
The sole question presented by this appeal is whether or not property held under a trust-deed is subject to the lien of the materialman who furnished lumber after the execution of the trust-deed, and with knowledge of its existence. The Hollywood Lumber Company, plaintiff and respondent, secured a personal judgment for $426.03 against the contractor Love. This sum was decreed as a lien upon the premises, and the sheriff was directed to sell the property for the satisfaction of said judgment. At the time when the contract was made with Love to construct a building on the land in question, Paul W. Boehncke and wife were the owners. Before the Hollywood Lumber Company commenced to furnish material, the Boehnckes executed to the California Safe Deposit and Trust Company a trust-deed to secure a loan of thirteen hundred dollars from the Continental Building and Loan Association. This money was borrowed for use in the construction of the building on this very land. Subsequently the property was sold pursuant to the terms of the deed of trust, and was purchased by the Continental Building and Loan Association for a sum equal to the amount of principal and interest due. The respondent's theory of the case is that the facts bring it within the scope of section 1192 of the Code of Civil Procedure, and great reliance is placed by counsel for respondent upon the case of Fuquay v. Stickney,
We therefore reverse that part of the judgment which declares a lien upon the property described in the complaint and judgment; and that portion decreeing that the said property be sold by the sheriff and the proceeds applied to the payment of the plaintiff's claim and costs.
Henshaw, J., Angellotti, J., Shaw, J., and Sloss, J., concurred. *275