Fields v. Cobbey

After stating the facts,

Miner, J.,

delivered the opinion of the court:

This record shows that Youngberg became the owner of the mining claims by virtue of the judgment against Hoge and sale of the property under the execution issued on that judgment prior to the pretended conveyance from Fields to Walker. The legal title was in Youngberg, subject to the mortgage lien held by Fields for the benefit of the bank. Although the deed to Fields was absolute in form, the findings and decree show that it was but a mortgage held to secure the payment of money. When that indebtedness was paid the whole title, legal and equitable, was in Youngberg.

The complaint was filed to quiet title and determine adverse claims, and not to foreclose the mortgage or deed of trust. When it appeared that the plaintiffs merely held a mortgage on the claims, and that Youngberg held the legal title, it was the duty of the court to dismiss the complaint, because an action to determine adverse claims cannot be maintained against the holder of the legal title by one who has a mortgage lien. Castro v. Barry, 79 Cal. 443.

A trustee in a trust deed is not vested with any legal title to the property covered by the deed when he has no beneficiary interest in it. Stevens Imp. Co. v. So. Ogden L. & B. Co., 58 Pac. 843, 20 Utah 267; Thompson v. Cheesman, 15 Utah, 51; Peck v. Insurance Co., 16 Utah, 121.

Sec. 3498 R. S. 1898, reads as follows:

“ There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property which action must be in accordance with the provisions of this chapter. Judgment shall be given adjudging the amount due, with costs and disbursements, and the salé of the mortgaged property, or some part thereof, to satisfy said amount, and directing the sheriff to proceed and sell the same according to the provisions of law relating to sales on execution. Such judgments may be docketed at any time.”

Sec. 3517, R. S. 1898, after the title “Actions to Quiet Title,” reads as follows:

“A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.”

These provisions of the statute render it clear that under the pleading the court had no authority to proceed as if the action was for the foreclosure of the plaintiff’s mortgage and render a decree making an accounting of the amount due on .the mortgage and striking a balance as between the bank and the trustee, and render judgment therefor, with an order of sale of the defendant’s property, for the amount due plaintiffs on their mortgage. The legal title to the property was in the defendant Young-berg, and the plaintiffs simply held a mortgage lien thereon. Until this lien was foreclosed the defendant Young-berg had the ownership and right to the property. In order to reach the end desired .it was competent for the plaintiffs to institute a proceeding to foreclose the mortgage,

Many authorities are cited by counsel for the plaintiffs, but we do not find them applicable to a case of this character. Under the pleadings the court did not acquire jurisdiction to foreclose the mortgage and render the decree appealed from.

The decree and order of the district court is reversed, with costs of both courts, and said court is directed to dismiss the complaint, as to Youngberg, but without prejudice to further action.

Babtch, C. J., and Baskin, J., concur.