Bryant v. Hobert

KERRIGAN, J. This is an appeal from a judgment in an action to quiet title, and is taken by the plaintiffs from the judgment entered in favor of the defendants. [1] The first question presented for determination is, Does a deed made by a trustee in pursuance of the power of sale contained in a deed of trust executed by both husband and wife convey the absolute title to the property as against a homestead declared upon the property by the wife prior to the execution of the deed of trust? *317 We think the point has been put at rest by the case of Weber v. McCleverty, 149 Cal. 316, [86 Pac. 706]; McLeod v. Moran, 153 Cal. 97, [94 Pac. 604], and Athearn v. Ryan, 154 Cal. 554, [98 Pac. 390]. The effect of such a deed, says the court in the first of those cases, is to convey the legal title to the trustee, who is thereby vested with the absolute legal title to the premises so far as is necessary to enable him to convey it to the purchaser at the trustee’s sale free of all right, title, interest, or estate of the trustors, or anyone claiming under or through them. [2] Under these authorities we have no doubt that such a deed of trust transfers for the purpose of the trust all possible claims of the trustors in the property conveyed, including a claim of homestead, and vests in the trustee the absolute legal title to the entire estate held by the trustors at the time of the execution of the trust deed, and that the title must remain in the trustee for that purpose until the trust is either executed through a sale upon default in the payment of the debt secured by the deed of trust, or is terminated by the payment of such debt or other method provided by law. [3] The declaration of homestead in the case at bar was made prior to the execution of the trust deed, but it is immaterial whether it was declared prior or subsequent thereto. (Athearn v. Ryan, supra.) [4] The next question presented is as to the right of the court to allow the case to be reopened in order to permit the defendants to file a supplemental answer after the court had ordered judgment for the defendants. The entry of the minute order by the clerk was not the decision of the court (Dalger v. Jacobs, 19 Cal. App. 207, [125 Pac. 258]), and the court in making the order complained of was exercising a legal discretion. It not appearing that there has been an abuse of such discretion, the order will not be disturbed. (California Farm Co. v. Schiappa-Pietra, 151 Cal. 732, [91 Pac. 593]; Young v. Mathews-Turner Co., 168 Cal. 671, 675, [143 Pac. 1029]; Lee v. Murphy, 119 Cal. 367, [51 Pac. 549, 955].) The judgment is affirmed. Waste, P. J., and Richards, J., concurred.