Opinion
Department One
APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge.
COUNSEL:
Appel & Whitney, for Appellant.
Walter F. Haas, for Respondents.
JUDGES: Harrison, J. Garoutte, J., and Van Dyke, J., concurred.
OPINION
HARRISON, Judge
On July 11, 1896, the defendant, J. M. Molle, held an agreement for the purchase of a parcel of land from the owner thereof for the sum of three hundred and fifty dollars, and at his request plaintiff on that date loaned to the defendants the said sum of money, for which they executed to him their promissory note, and afterward applied the money in payment of the balance due on the agreement, and obtained the legal title to the land. The plaintiff alleges, "upon information and belief," that the defendants promised him that if he would advance the said money they would secure him in its payment by giving him a mortgage upon the land when they should obtain the legal title thereto; and alleges that after they had obtained the legal title they refused to execute said mortgage. Subsequently, the plaintiff brought an action upon the note, and, on the 29th of March, 1897, obtained judgment against the defendants and each of them for its amount. Prior thereto, viz., January 18, 1897, Molle had filed a declaration of homestead upon the premises. The plaintiff seeks by this action a judgment setting aside and canceling this declaration of homestead as void, and that the land he applied toward the payment of his judgment. A demurrer to the complaint was sustained by the superior court, and from the judgment thereon the plaintiff has appealed.
It is claimed in support of the appeal that by virtue of the transaction between the plaintiff and the defendants the plaintiff was subrogated to the rights of the vendor of the land, and is entitled to enforce the claim against the land as fully as could the vendor. The complaint does not, however, contain the contract between the vendor and the defendants, or show the relation between them. Nor does it appear therefrom that the vendor had any rights which he could enforce against them. It merely shows that the defendants had the right to purchase the land for a given sum of money. It does not appear at what time the defendants paid the money to the vendor, or when the land was conveyed to them, and, as the vendor was to retain title to the land until full payment therefor should be made, there was no vendor's lien to which the plaintiff could be subrogated. The transaction between the plaintiff and the defe ndants was merely a loan of money upon their [57 P. 209] agreement to give him security, which they afterwards refused to do.
Neither can the claim of the appellant that he has a lien upon the land in the nature of an equitable mortgage prior to that of the homestead be maintained. If it be assumed that the agreement between him and the defendants constituted an equitable mortgage, the statute declares that the homestead claim is superior to the lien of a mortgage created before the filing of the declaration of homestead, unless such mortgage was "executed and recorded" prior thereto. (Civ. Code, sec. 1241, subd. 4.) By putting his claim upon the promissory note into a personal judgment after the declaration of homestead had been filed, he elected to look to the personal obligation of the defendants instead of the security promised by them. If he would have claimed a priority over the lien of the homestead, he should have asserted it in that action. Section 726 of the Code of Civil Procedure declares that: "There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate"; and, if the plaintiff held an equitable mortgage upon the premises, his failure to enforce it in that action had the effect to deprive him of such security. (Mascarel v. Raffour , 51 Cal. 242; Ould v. Stoddard , 54 Cal. 613.)
If the claim of homestead is ineffective, his remedy at law by means of an execution upon his judgment is ample.
The judgment is affirmed.