Howe v. Tucker , 219 Cal. 193 ( 1933 )

For a chronological statement of the facts herein reference is hereby made to the opinion of this court on a petition forsupersedeas in the cause entitled Tucker v. Howe, 217 Cal. 23 [17 P.2d 103].

[1] Appellants properly state the sole legal question involved as follows: "Is an action for the cancellation, upon the grounds of fraud and undue influence of, or for the determination of a trust in, a note and a deed of trust securing the note, in which deed of trust the trustee therein named is a person other than the payee of the note, a transitory action so that venue of the trial thereof should be transferred to the county of the defendants' residence, a proper motion and demand having been made therefor?"

The court below answered the question in the negative and made its order accordingly. We are led to answer it in the affirmative.

The promissory note may exist alone, without the aid of the deed of trust; cancellation or reformation of the latter would not affect the integrity of the note secured by it. The complaint here essays to have canceled not alone the deed of trust, but the promissory note as well. Under the prayer of the complaint this two-fold relief is permissible. But upon reason as well as authority, an action to cancel or reform a promissory note secured by a deed of trust is a transitory action and must follow the person of the defendant (sec. 395, Code Civ. Proc.; Jacobs v. C.H. Smith Lumber Co., 206 Cal. 128 [273 P. 571]).

It may be conceded also that a complaint having for its sole and exclusive object the cancellation of a deed or a deed of trust for fraud is a local action. (Eckstrand v. Wilshusen,217 Cal. 380 [18 P.2d 931]; State v. Royal ConsolidatedMin. Co., 187 Cal. 343, 351 [202 P. 133]; Booker v.Aitken, 140 Cal. 471 [74 P. 11].) But here we have united in one complaint allegations and a prayer authorizing relief in both transitory and local causes of action. In such situation we must be guided by the doctrine so well announced in Smith v.Smith, 88 Cal. 572, 576 [26 P. 356, 358], as follows:

"When, however, the subject-matter of the action is local, and the judgment which is sought is to operate directly upon that subject-matter, it is provided that the action shall be tried in the county where the subject-matter of the action is situated. This being an exception to the general rule, the conditions under which the exception is claimed must be clearly and distinctly shown. The plaintiff cannot, by uniting in his complaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both those matters tried in a county other than that in which he resides. It is only when real estate alone is the subject-matter of the action that the provisions of section392 can be invoked against a defendant who resides in a county different from that in which the land is situated. If, in his complaint, the plaintiff join with such a cause of action another which is not embraced in its provisions, or if he also seeks a remedy against the defendant upon matters which are not embraced within the provisions of this section, his action becomes one of those ``other cases' provided for in section 395, which the defendant is entitled to have tried in the county of his residence."

The above doctrine has been uniformly followed in this state. A few of the many authorities which might be cited are: Eckstrand v. Wilshusen, supra; Brown v. Happy Valley Fruit Growers,205 Cal. 515 [274 P. 977]; Jacobs v. C.H. Smith Lumber Co.,supra; Sheeley v. Jones, 192 Cal. 256 [219 P. 744]; Booker v. Aitken, supra; Warner v. Warner, 100 Cal. 11 [34 P. 523]; LeBreton v. Superior Court, 66 Cal. 27 [4 P. 777]. Said doctrine is not to be set aside because the deed of trust and the note are parts of one and the same transaction (sec. 1642, Civ. Code; Phelps v. Mayers, 126 Cal. 549 [58 P. 1048]; Meyer v. Weber, 133 Cal. 681 [65 P. 1110]). Nor because under the recent case of Bank of Italy v. Bentley,217 Cal. 644 [20 P.2d 940], an independent action on a promissory note, secured by a deed of trust, will not lie until the security has been exhausted or becomes valueless.

Appellants admittedly are not residents of Del Norte County. It is clear also that a proper application for transfer of the cause to the proper county for trial has been made and supported by an affidavit of merits and of residence. It is also without substantial conflict that the appellants reside, and have resided at all times here material, in Los Angeles County.

The order denying a transfer is reversed, with direction to transfer the cause to the Superior Court of Los Angeles County for trial.

Curtis, J., Langdon, J., and Seawell, J., concurred.