Daily Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1876-1884, 1880-12-18

granted premises and out of th'
proceeds thereof shall pay, etc.
"And in event Of . sale of sale
premises or any part thereof. ant
the execution of deed or deedi
therefor under these trusts, Their
the recitals therein OF default anG
publication shall be conclusive
proof OF such default and of the due
publication of such notice and any
such deed or deeds which such re.
citals therein shall be effectual and
conclusive against said party oil
the first part, his heirs and assigns
and all other persons; and the re.
ceipt for the purchase money, con.
tanned In any deeds executed to
the purchaser, as aforesaid, shall
be sufficient discharge to such
purchaser from all obligations to
see the proper application of the
purchase money, according to the
trusts aforesaid.
"In witness whereof the said
party Of the first part has hereunto
set his hand and seal the day and
year first above written.
Signed. Pho PIcO."
[SEAr1
On the 1eth July, 1875, Pho Picc
executed and delivered the follow.
ing note: 1927, 345. San Francisco,
July 16, 1876. For value received
In gold coin of the United States oil
America Of the standard issue from
the United States Mint during the
year 1851. l, Pho Pico, promise to
pay to the Savings and Loan So.
ciety "a eorporation) duly inc0rpo.
rated under the laws of California,
or order at his office, six months
after date without grace the
principal sum of twenty-seven
thousand and three hundred,
forty-five dollars and interest
thereon at the rate of one
per cent per month payable month
" in advance. And hereby prom
Use and agree to pay both principal
and interest in gold coin of the
United States, of the standard
Aforesaid, hereby waving any
right now have or may here.
after have, to pay the same in any
other currency. And 1 further
agree that In case default be made
In the payment of any of said in
stallments of principal or interest
Rt the times and In the manner
aforesaid, then such installment
or payment SO in default, shall
bear interest from the day of ma
turity until the date of payment,
at the rate of two per cent. per
compromising monthly,
and at any time during said default
The entire unpaid balance of said
principal sum shall at the option of
The holder of the note, and not 9TH
erwise, become due and payable,
of which election notice Ia hereby
expressly waived, and said princi.
pal sum and interest so due and
payable shall bear interest there.
after at the rate of two per cent.
per month, compounding monthly
Until paid. This note Is secured by
deed of trust, duly stamped ac-
'ording to law, made by Pho Pico
20 e. w. Burr and Benz. d. Dean,
lated the sixteenth day Of July,
$50, and recorded in the office of
he Recorder in and for the county
i Los Angeles, in Liber. Is Of
Deeds, at page 2S1 to 285.
"PIo Proc.
"Witness: Charles Forbes"
The conveyance of the Trustees
ecites the trust deed, the promis-
ory note of $27, 1854, and recites de-
ault of payment, application by
he creditor for execution of the
rust, publication of notice that
he Trustees would sell, and that
he Trustees made the sale pursu-
mt to the notice and then grants,
bargains and sells the property to
he plaintiff.
The defendants in the case filed
heir general denial to tho COM
'laint, which amounts to little
more than a general denial. and by
vay OF counter claim and for equit.
BILE relief the defendants plead:
First, That the PLAINTIFF cause
1 action is barred by the Statute
4 Limitations and sets out the
rust deed and other documents
lereinbefore referred to, and plead
hat the $50, 900 note was satisfied
y the $27, 1854 note.
Second, Sets up q copyeyance
rom defendant Pico to defendant
Haley. and sets up q tender by
leo to pay another note for SIS, 1855.
Third, Sets up that the Trustees
nade o pretended sale and pload |
acts which amount to q plea of
raud and combination of the Trus.
ees and the corporation plaintiff |
0 sacrifice the property, and that |
he sale was made in violation of
he trust and sold In an Irregular |
nd void manner, and for about |
alf of its value.
The character of these instru-
lents or trust deeds does not seem
. be very clearly settled. w. |
In his treatise on Real |
vol. 2 page 80, says:
Though of the nature of a mort
age, and by some cases treated as |
1entical with them, the better |
pinion seems to be that they arc
ather like mortgages than mort
ages in fact"
In Koch VS.. Briggs, IA Cal. 25e,
hey are held not to be mortgages
ut a conveyance of the fee. The
'ourt says, however, "it matters
ot whether we consider the in
trument conveyance of a condi-
ional estate in land or at common
aW. or as creating n mere lien mr.
for the purpose Of
as by our law.n
The Court reaches the conclusion
hat 1t cannot be sold, as in the |
ase Of foreclosure of mortgage,
ut mnst be disposed of by the
trustee. 1t has been held, that,
he test is, IL the trust is to be exc.
uted by the creditor it Is a mort
age, if by third party it is a
rust.
Marvin vs.. Ellsworth, 10 Wisoon-
In, 261, whether the instrument at