Kraft v. De Forest

53 Cal. 656

Opinion

By the Court :

The bill alleges that when the real estate was conveyed in trust to plaintiffs, there were certain fixtures attached to the soil, and that the deed also conveyed to them certain personal property. Also, that the assignees of defendant, the Sierra Flume and Lumber Company, have removed a portion of the fixtures and personal property, and threaten to further dismantle the property. It alleges that the lands, if sold, will not, in their present condition, bring the amount of the debt due from defendants Campbell & Welton, and prays for the appointment of a Receiver for. the protection of the property pending the litigation, and that the personal property and fixtures, as well as the lands, be decreed to be sold for the payment of the indebtedness due to the plaintiffs.

It is apparent that the mere sale of the lands, stripped of the fixtures and without the personal property, would not afford the plaintiffs effectual relief, and inasmuch as they have been obliged to resort to a Court of Equity to secure the protection of the personal property and fixtures from detriment and destruction, and the application of their proceeds toward the payment of their debt, the Court, upon well established principles, will take jurisdiction of the whole subject-matter of litigation, and also decree a sale of the real estate proper..

This view of the question involved renders it unnecessary to decide whether, if the case were stripped of its special circumstances, the plaintiffs would be limited to a sale of the property in the manner provided for in the deed of trust, and be prohibited from seeking a judicial sale of the same.

Judgment reversed and cause remanded, with directions to the Court below to overrule the demurrer to plaintiffs’ complaint. Remittitur forthwith.