Vanclief, C.
A demurrer to the complaint in this action was sustained. The plaintiff declined to amend his complaint, and thereupon judgment was rendered in favor of defendants. This appeal by the plaintiff from the judgment presents the general question whether or not the demurrer should have been sustained. The complaint purports to be on behalf of the plaintiff, and of such other creditors of Bryant as will come in and contribute to the expenses of the suit, and occupies twenty-seven pages of the transcript; but the following is deemed a sufficient statement of its substance for all purposes of the appeal.
On January 17, 1885, the defendant Bryant made two promissory notes to the defendant Tully, each for the sum of five hundred dollars, payable six mouths after date, with interest at the rate of one and a half per cent per month. On the same day, Tully indorsed the notes to plaintiff in these words: “Without recourse on me, John Tully. ” The consideration for the notes was a loan from plaintiff to Bryant of one thousand dollars, [499]*499which loan had been negotiated by Tully, and the notes were intended to secure payment of that loan. At the time of making these notes, “Bryant was indebted, and still is indebted, in divers sums, to many persons besides this plaintiff,” amounting to not less than thirty-five thousand dollars, upon promissory notes made by him to Tully, and indorsed by Tully to them.
On October 1, 1885, for the purpose of securing the payment of the above-mentioned promissory notes and like notes to be thereafter made, the whole not to exceed sixty thousand dollars, Bryant executed to John S. Davis a deed of trust of some eleven tracts of land, described by legal subdivisions, and three town lots, aggregating about fourteen hundred acres. John Tully was named as party of the third part to this deed of trust, and authorised to pay the taxes on the land, and to prosecute or defend suits considered necessary to protect the trust and the title to the land. In ease of Bryant’s default in making payment of any of the debts secured, the trustee (Davis) is authorized to sell so much of the trust property as necessary, and to apply the proceeds to the payment of such debts. None of the creditors intended to be secured, except Davis and Tully, are named in the trust deed. Davis expressly accepted the trust.
The execution of this instrument was acknowledged by Bryant on the day of its date, and on the ninth day of October, 1885, was duly recorded.
On February 16,1886, Bryant, in accordance with the provisions of the Civil Code, made an assignment of all his property, subject to the trust created by the above instrument, to the defendants Wilhoit, Langford, and Bemert, for the benefit of his creditors, and on the same day filed in the office of the county recorder an inventory of his estate, including all the land described in the above deed of trust, and wherein the defendants Davis and Tully are listed as creditors for large sums of money, and wherein it is stated that said lands were encumbered by certain mortgages other than the deed of [500]*500trust, and also, that one quarter-section of the land was exempt from execution, it being his homestead.
On April 6, 1886, the assignees, Wilhoit, Langford, and Bemert, commenced an action against Davis, Tully, and Bryant to set aside and annul the deed of trust above set out, on the ground of fraud, and that it was never delivered to Davis by authority of Bryant, the acts constituting the fraud being stated in the complaint, and being sufficient to warrant the relief asked as against Davis, Bryant, and Tully, the only defendants in that action; but neither the plaintiff in this action nor any other creditor of Bryant, except Davis and Tully, were made parties to that action. The defendants were duly served with summons, but made default, and on May 27, 1886, judgment was rendered against them to the effect that the trust deed of October 1, 1885, was fraudulent, and a cloud upon the title of the plaintiffs in that action as assignees for the creditors of Bryant; that it be annulled and canceled; that Davis convey the lands to the assignees by good and sufficient deed, etc., within five days; and that Davis and Tully be perpetually enjoined from asserting any title to or claim upon the lands under or by virtue of the deed of trust.
After stating the above facts, the complaint herein proceeds to allege that the material averments of the complaint of the assignees against Davis, Tully, and Bryant, as to fraud and non-delivery of the deed of trust, were false, and known to be so by Davis, Tully, and Bryant at the time they made default, and at the times their default was entered and judgment taken against them; that the plaintiff herein (Watkins) "had no notice or knowledge either of said suit or the decree therein, until after the rendition of said decree,” and that divers other creditors of Bryant, designated in said deed of trust, had no notice or knowledge of said suit and decree before the rendition and entry of said decree-.
The complaint herein further states that Davis has not done any act or thing in or towards the execution of his trust or the performance of his duty under the [501]*501deed of trust, and “at all times since the date of said decree has refused to perform the said trust and the duties connected therewith”; that in the years 1886 and 1887, several portions of the land described in the deed of trust were sold under several decrees of court to satisfy mortgages thereon prior to the deed of trust, and that such mortgages were satisfied from the proceeds of such sales (from the description of the land thus sold by legal subdivisions, it must amount to over six hundred acres); that an additional one quarter-section of said land (the homestead quarter) was sold under a foreclosure decree on April 27, 1889, to satisfy a mortgage executed by Bryant to defendant Wilkes on February 17, 1886, to secure a note of that date for $9,033, but that the consideration for this note consisted solely of the sum of several smaller notes made before the date of the deed of trust, and which were secured by the deed of trust; this quarter-section was purchased by Wilkes at the foreclosure sale for the sum required to satisfy the foreclosure decree, viz., $12,125.58. Wilkes had notice of the deed of trust at and before the time he took the mortgage thus foreclosed. That on one of the foreclosure sales above mentioned, the sheriff reported a surplus of $1,533.40, which was ordered by the court to be paid to the assignees, without notice to Davis or to plaintiff; that the assignees sold the right of redemption to another tract which had been sold at a foreclosure sale for $9,000, which they now hold in their hands; that the assignees redeemed from the foreclosure sale the three town lots, and resold them at a profit of $1,000; and further, that they have received and hold in their hands, of the income, rents, and profits derived from said lands since February 16, 1886 (date of assignment), about $10,000; that Bryant has no property subject to the payment of his debts except the real estate described in the deed of trust, and plaintiff has no security except his lien upon that property or its proceeds by virtue of the deed of trust; that no part of his debt has been paid; and that the trust [502]*502remains unexecuted, and will so continue, unless enforced by decree of this court.
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Vanclief, C.
A demurrer to the complaint in this action was sustained. The plaintiff declined to amend his complaint, and thereupon judgment was rendered in favor of defendants. This appeal by the plaintiff from the judgment presents the general question whether or not the demurrer should have been sustained. The complaint purports to be on behalf of the plaintiff, and of such other creditors of Bryant as will come in and contribute to the expenses of the suit, and occupies twenty-seven pages of the transcript; but the following is deemed a sufficient statement of its substance for all purposes of the appeal.
On January 17, 1885, the defendant Bryant made two promissory notes to the defendant Tully, each for the sum of five hundred dollars, payable six mouths after date, with interest at the rate of one and a half per cent per month. On the same day, Tully indorsed the notes to plaintiff in these words: “Without recourse on me, John Tully. ” The consideration for the notes was a loan from plaintiff to Bryant of one thousand dollars, [499]*499which loan had been negotiated by Tully, and the notes were intended to secure payment of that loan. At the time of making these notes, “Bryant was indebted, and still is indebted, in divers sums, to many persons besides this plaintiff,” amounting to not less than thirty-five thousand dollars, upon promissory notes made by him to Tully, and indorsed by Tully to them.
On October 1, 1885, for the purpose of securing the payment of the above-mentioned promissory notes and like notes to be thereafter made, the whole not to exceed sixty thousand dollars, Bryant executed to John S. Davis a deed of trust of some eleven tracts of land, described by legal subdivisions, and three town lots, aggregating about fourteen hundred acres. John Tully was named as party of the third part to this deed of trust, and authorised to pay the taxes on the land, and to prosecute or defend suits considered necessary to protect the trust and the title to the land. In ease of Bryant’s default in making payment of any of the debts secured, the trustee (Davis) is authorized to sell so much of the trust property as necessary, and to apply the proceeds to the payment of such debts. None of the creditors intended to be secured, except Davis and Tully, are named in the trust deed. Davis expressly accepted the trust.
The execution of this instrument was acknowledged by Bryant on the day of its date, and on the ninth day of October, 1885, was duly recorded.
On February 16,1886, Bryant, in accordance with the provisions of the Civil Code, made an assignment of all his property, subject to the trust created by the above instrument, to the defendants Wilhoit, Langford, and Bemert, for the benefit of his creditors, and on the same day filed in the office of the county recorder an inventory of his estate, including all the land described in the above deed of trust, and wherein the defendants Davis and Tully are listed as creditors for large sums of money, and wherein it is stated that said lands were encumbered by certain mortgages other than the deed of [500]*500trust, and also, that one quarter-section of the land was exempt from execution, it being his homestead.
On April 6, 1886, the assignees, Wilhoit, Langford, and Bemert, commenced an action against Davis, Tully, and Bryant to set aside and annul the deed of trust above set out, on the ground of fraud, and that it was never delivered to Davis by authority of Bryant, the acts constituting the fraud being stated in the complaint, and being sufficient to warrant the relief asked as against Davis, Bryant, and Tully, the only defendants in that action; but neither the plaintiff in this action nor any other creditor of Bryant, except Davis and Tully, were made parties to that action. The defendants were duly served with summons, but made default, and on May 27, 1886, judgment was rendered against them to the effect that the trust deed of October 1, 1885, was fraudulent, and a cloud upon the title of the plaintiffs in that action as assignees for the creditors of Bryant; that it be annulled and canceled; that Davis convey the lands to the assignees by good and sufficient deed, etc., within five days; and that Davis and Tully be perpetually enjoined from asserting any title to or claim upon the lands under or by virtue of the deed of trust.
After stating the above facts, the complaint herein proceeds to allege that the material averments of the complaint of the assignees against Davis, Tully, and Bryant, as to fraud and non-delivery of the deed of trust, were false, and known to be so by Davis, Tully, and Bryant at the time they made default, and at the times their default was entered and judgment taken against them; that the plaintiff herein (Watkins) "had no notice or knowledge either of said suit or the decree therein, until after the rendition of said decree,” and that divers other creditors of Bryant, designated in said deed of trust, had no notice or knowledge of said suit and decree before the rendition and entry of said decree-.
The complaint herein further states that Davis has not done any act or thing in or towards the execution of his trust or the performance of his duty under the [501]*501deed of trust, and “at all times since the date of said decree has refused to perform the said trust and the duties connected therewith”; that in the years 1886 and 1887, several portions of the land described in the deed of trust were sold under several decrees of court to satisfy mortgages thereon prior to the deed of trust, and that such mortgages were satisfied from the proceeds of such sales (from the description of the land thus sold by legal subdivisions, it must amount to over six hundred acres); that an additional one quarter-section of said land (the homestead quarter) was sold under a foreclosure decree on April 27, 1889, to satisfy a mortgage executed by Bryant to defendant Wilkes on February 17, 1886, to secure a note of that date for $9,033, but that the consideration for this note consisted solely of the sum of several smaller notes made before the date of the deed of trust, and which were secured by the deed of trust; this quarter-section was purchased by Wilkes at the foreclosure sale for the sum required to satisfy the foreclosure decree, viz., $12,125.58. Wilkes had notice of the deed of trust at and before the time he took the mortgage thus foreclosed. That on one of the foreclosure sales above mentioned, the sheriff reported a surplus of $1,533.40, which was ordered by the court to be paid to the assignees, without notice to Davis or to plaintiff; that the assignees sold the right of redemption to another tract which had been sold at a foreclosure sale for $9,000, which they now hold in their hands; that the assignees redeemed from the foreclosure sale the three town lots, and resold them at a profit of $1,000; and further, that they have received and hold in their hands, of the income, rents, and profits derived from said lands since February 16, 1886 (date of assignment), about $10,000; that Bryant has no property subject to the payment of his debts except the real estate described in the deed of trust, and plaintiff has no security except his lien upon that property or its proceeds by virtue of the deed of trust; that no part of his debt has been paid; and that the trust [502]*502remains unexecuted, and will so continue, unless enforced by decree of this court.
It is also alleged in the complaint that on July 13, 1889, the plaintiff commenced an action against Bryant on the two promissory notes indorsed to him by Tully as above stated, and obtained a personal judgment against Bryant for the sum of $2,342.60, including interest and costs.
The prayer of the complaint is, that it may he adjudged that the decree canceling and annulling the deed of trust “is in fraud of the rights of, and of no effect as against, this plaintiff; that the several tracts, pieces, or parcels of land in said deed described, .... not heretofore sold for the satisfaction of the mortgages to which said deed of trust refers, together with the said surplus,” viz., the sums alleged to he in the hands of the assignees, Wilhoit, Langford, and Bemert, amounting to about twenty-one thousand dollars, he adjudged subject to said deed of trust; that the last above-described lands he sold under the direction of the court, and the proceeds thereof, together with the money in the hands of assignees, Wilhoit, Langford, and Bemert “be applied to the payment in full, or the payment ratably, of this plaintiff's said demands, with those of all other creditors meant, mentioned, or intended to be secured by the said deed of trust, and who may come in and contribute to the expenses of this suit; and that the mortgage of February 17, 1886, to the defendant Wilkes, was subsequent and subordinate to the equitable lien of this plaintiff,” and for such other relief, etc.
To tin's complaint, the defendants Wilhoit, Langford, and Bemert, the assignees, and Wilkes demurred, on the general ground that it does not state facts sufficient to constitute a cause of action, and on the special grounds of non-joinder of parties plaintiff and defendant, misjoinder of causes of action, and that the causes of action appear to be barred by sections 318, 337, 338, and 343 of the Code of Civil Procedure.
[503]*503The other defendants, Bryant, Davis, and Tully, made default.
1, Conceding, without deciding, that there is not a misjoinder of causes of action, still, the complaint shows that the judgment of May 27, 1886, canceling the deed of trust, ordering Davis, the trustee, to convey the trust property to the assignees, Wilhoit, Langford, and Bemert, and perpetually enjoining Davis and Tully from asserting any title or claim to the trust property, is an insuperable obstacle to any relief sought in this action so long as that judgment remains in force; and this is the theory of the complaint, which charges that that judgment was obtained by and through the fraudulent default of Davis and Tully, and on the ground of this alleged fraud seeks to annul it in this action. The prayer of the complaint is, that it be adjudged that that judgment “ is in fraud of, and of no effect against, this plaintiff.” If this relief cannot be granted, it is plain that the deed of trust canceled by that judgment cannot be enforced in this action, either through the instrumentality of Davis, or any trustee appointed by the court. Therefore, if it appears that the cause of action to annul and set aside that judgment on the ground of fraud is barred by the statute of limitations, the plaintiff can have no cause of action upon the canceled deed of trust, and the demurrer to the complaint was properly sustained on that ground.
This action was not commenced within three years after the rendition of the judgment annulling the deed of trust, and consequently not wúthin three years after the acts constituting the fraud by which that judgment is alleged to have been obtained; yet there is no averment in the complaint that the fraud was first discovered within three years next before the commencement of this action (People v. Blankenship, 52 Cal. 619), the only averment in this respect being that the plaintiff “ had no notice or knowdedge, either of said suit or the decree therein, until after the rendition of said decree.”
It is contended, however, for the appellant that the [504]*504decree canceling the deed of trust, etc., was absolutely void as to this plaintiff, as he was not a party to the suit in which that decree was rendered. The answer to this is, that although not named as a party to that action, he was represented therein by the trustee, Davis. Says Mr. Pomeroy, in his work on Remedies and Remedial Rights, section 357: “ There is a broad distinction between the case of an action brought in opposition to the trust to set aside the deed or other instrument by which it was created, and to procure it to be declared a nullity, and that of an action brought in furtherance of the trust to enforce its provisions, to establish it as valid, or to procure it to be wound up and settled. In the first case, the suit may be maintained without the presence of the beneficiaries, since the trustees represent them all, and defend them.” This, as an exception to the general rule, applies to the case at bar, and seems to be well supported by the following and other authorities: Kerrison v. Stewart, 93 U. S. 155; Corcoran v. Chesapeake etc. Canal Co., 94 U. S. 744; Rand v. Walker, 117 U. S. 344; Richer v. Jerome, 123 U. S. 246; Union R. R. Co. v. Dull, 124 U. S. 173; Rogers v. Rogers, 3 Paige, 378; Winslow v. Minnesota etc. R. R. Co., 4 Minn. 313; 77 Am. Dec. 519; Paul v. Fulton, 25 Mo. 156; Bank of British North America v. Suydam, 6 How. Pr. 379; Mitchell v. Bank of St. Paul, 7 Minn. 252; Jones on Mortgages, 1399; Code Civ. Proc., sec. 369; Chew v. Brumagen, 80 U. S. 497.
Admitting that in a case of this kind the beneficiaries would have been proper parties, and also that in case they were not made parties it was the duty of the trustee to notify them of the pendency of the suit, yet it does not appear in this case that either the trustee, Davis, or the plaintiffs in the action to annul the trust deed, knew, or had the means of ascertaining, who were the'beneficiaries. The deed of trust did not name nor describe any one of them. Nor did it classify them by reference to any common attribute, except that the class consisted of all such persons as held negotiable notes made by Bryant to Tully and indorsed by the latter, amounting to [505]*505not more that sixty thousand dollars, and which may have been made either before or after the execution of the deed of trust. There may have been SO, 60, or 120 holders of these notes, and many of the notes may have been negotiated after their indorsement by Tully. Suppose a holder of any one of these notes made after the execution of the deed of trust had been found, — how could it have been ascertained whether his note was within, or in excess of, the sixty-thousand-dollar limit? Under these circumstances, the application of the exceptional rule permitting the trustee to represent the holders of these notes is peculiarly appropriate. Besides, it seems at least doubtful whether or not the deed of trust was void for uncertainty as to the beneficiaries.
2. It is claimed by appellant that the court erred in refusing to give judgment against the defaulting defendants, Bryant, Davis, and Tully; but inasmuch as the complaint shows that the deed of trust upon which the action was brought had been canceled, the plaintiff was not entitled to any relief against Davis or Tully. Ho personal judgment against Bryant on his promissory notes is asked; besides, such a judgment would have been superfluous, as plaintiff had obtained a personal judgment against Bryant on those notes in July, 1889.
As the foregoing considerations dispose of the case finally, it is not necessary to consider the points as to laches and equitable estoppel.
I think the judgment should be affirmed.
Belcher, C., and Fitzgerald, C., concurred.
The Court.
For the reasons given in the foregoing opinion, the judgment is affirmed.
Hearing in Bank denied.