140 P. 6 | Cal. | 1914
Another action involving much of the law and many of the facts here presented was brought by these plaintiffs against the same defendants. To the complaint in *461
that action a general demurrer was sustained. An appeal was taken to this court which will be found reported in Smith v. McNutt,
The court heard the evidence, made its findings adverse to plaintiffs, entered judgment accordingly, and plaintiffs have appealed from that judgment and from the order denying their motion for a new trial.
It is apparent from what has been said that the whole foundation of appellants' case rests upon its asserted identity with the case of a redemption by one of several joint owners or the acquisition of an outstanding title by one cotenant or tenant in common. (Randall v. Duff,
But to return to the principal point in the case, — the charge that grave equities were imposed upon the Nuevo Land Company by virtue of the manner of its acquisition of the title. It is declared in Smith v. McNutt that the trust necessarily terminated upon the foreclosure sale. This is not only the law of the case but it is true in fact. "When the purpose for which an express trust was created ceases, the estate of the trustee also ceases." (Civ. Code, secs. 871, 2279.) "Upon a sale of real property the purchaser is substituted to and acquires all the right, title, interest and claim of the judgment debtor therein." (Code Civ. Proc., sec. 700.) "It is by the foreclosure sale that the title passes." (Robinson v. Thornton,
Coming thus to the rights and duties of the beneficiaries after this judicial sale, it is to be noted that the purchase was made by the bank which in no way was charged with any duty toward any of the beneficiaries. Moreover, the interests of the beneficiaries were included, determined, and foreclosed by the judgment and sale, not only by reason of the fact that in the foreclosure proceedings they were represented by their trustee McNutt who was a defendant, but also by virtue of the fact that McNutt's declaration of trust was not placed of record until after the lis pendens in the foreclosure action had been filed. (Civ. Code, secs. 1214, 1215.) Therefore, we have by virtue of this foreclosure and sale, the extinguishment of the trust and the beneficiaries' right under the trust, with title to the land going into the hands of a stranger in interest to the beneficiaries, freed from every claim, legal or equitable, upon their part saving their right of redemption. For the reasons already given, these beneficiaries, one and all, being before the court in the foreclosure proceedings are bound by its decree. What right of redemption was then open to them or any of them? Was it an equitable right which they might exercise at their pleasure years after, as here they seek to do, or was it the statutory right merely? Unquestionably it was the statutory right declared in section 702 of the Code of Civil Procedure. They and their rights were before the court in the foreclosure action. They were not in the position of subsequent lien claimants, mortgagees, or grantees not impleaded. They had no equities other than those which were passed upon in the action and they were *466
limited therefore to their statutory right of redemption.(Whitney v. Higgins,
It might well be sufficient to rest this decision here, but the contention is so earnestly pressed that because Miller acquired the Wolfskill and Hansen interests in the trust, his purchase of the certificate of sale from the bank in equity so redounded to the benefit of all the beneficiaries, that in effect it restored the trust, that it was a redemption as complete as though made by McNutt himself as trustee — that it is proper perhaps, briefly, to consider this position and show its untenableness. And this may be done by this simple declaration, that if Wolfskill himself had purchased the certificate of sale from the bank he would have received complete title to the property freed from any subsequent liens of Hansen and of plaintiffs and subject singly to their right of redemption which could be exercised only within the statutory period and only upon paying to him the amount not only of the judgment and costs of redemption, but the amount of his prior lien upon the property, and this, for the simple fact that even were the parties bound by the privity which exists in the case of tenants in common (though, as is plain, they were not), still there was nothing in the law to prevent any one of them from acquiring for his sole ownership the rights of all the others at a judicial sale which covered those rights. Such are the cases of Gunter v. Laffan,
And, finally, upon this branch of the case it may be added that, even where the doctrine of equitable contribution is applicable and is sought to be applied, the rule is that the offer of contribution and the demand of the right to contribute shall be promptly made. (Stevenson v. Boyd,
The judgment and order appealed from are therefore affirmed.
Melvin, J., and Lorigan, J., concurred.