Herbert Craft Co. v. Brian

Citations

• 6 Cal. Unrep. 923
• 68 P. 1020

Syllabus

<p>Trust Deed.—In an Action to Becover the Balance Due on a note after sale under a trust deed securing it, a claim set up in defendant’s answer that the trust sale was void, and that no suit could be maintained on the note until the security was exhausted, conflicted with a claim, also set up in such answer, that defendant was entitled to the profits realized from a resale of the property which defendant had purchased at the trust sale; and the granting of relief based on one of such claims would exclude the granting of that based on the other.</p> <p>Trust Deed.—A Deed of Trust to Secure a Debt, With Power of Sale to be exercised after breach of the obligation which it is given to secure, is, in effect, only a mortgage with power of sale, such as is authorized by 'Civil Code, section 2932, and is within the policy of Code of Civil Procedure, section 726, providing that only one action can be maintained to enforce any debt or right secured by a mortgage, and that such action shall be the one therein prescribed, which contemplates a sale and exhausting of the security before any personal judgment can be rendered.</p> <p>Trust Deed.—The Trustees in a Deed of Trust to Secure a Debt, whb were apparently not interested in the debt at the time of the execution of the deed, subsequently, without the knowledge or consent of the grantors, became shareholders and directors in a corporation which thereafter purchased the debt. The corporation then had the property sold by the trustees, bought it in, and sold it again at a profit. Held, that the sale was voidable at the mere instance of the grantor, or, if affirmed by him, he was entitled to an accounting for the profits of the resale, and to credit therefor as of the time of the resale.</p> <p>Trust Deed.—The Assignee of a Note Secured by a Deed of trust, who purchases the property at a sale under the deed of trust, cannot deny that the payee of the note, his assignor, accepted the deed of trust- as security for such note.</p