Walley

The sole question presented in this appeal is whether, under the admitted facts, plaintiff’s title, based upon the enforcement of a judgment lien, has priority over defendants ’ purchase money trust deed.

The action commenced with a complaint to quiet title to real property. Defendants answered and cross-complained for declaratory relief. Each side then moved for a summary judgment in its favor. The trial court denied defendants’ motion and granted plaintiff’s motion. Judgment was thereafter *219 entered adjudging that plaintiff’s interest in the property was free and clear of any claim of the defendants.

Inasmuch as the facts alleged and admitted in the pleadings are sufficient to dispose of the controversy on an issue of law, it is unnecessary to discuss either the procedures employed in the trial court or the contents of the affidavits made in support of the motions for summary judgment.

The cross-complaint alleges the following transactions:

A writ of execution was issued under the judgment, and levy was made upon the interest of Eura Lee Stephens. An execution sale was held on February 18, 1964, whereby the interest of Eura Lee Stephens was sold to Schoettler. The…

I concur in the reversal of the judgment, but do not concur in the directions that accompany the order.

This ease came to our attention by defendants ’ appeal from the summary judgment that was entered, upon plaintiff’s motion. That “drastic” remedy (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [ 42 Cal.Rptr. 449, 452 , 398 P.2d 785, 788 ]) should not have resulted in a judgment for the plaintiff. For one thing, the allegation of his complaint, to quiet title, that “the plaintiff for a long time and hitherto has been, and is now, the owner of an undivided one-half interest in and to” the real property in litigation, was denied. Nowhere in the affidavit offered in support of his motion for a summary judgment, however, was the property identified other than by references to “said parcel of real prop[e]rty.” These references were insufficient for the reason that there was no antecedent to which “said” could attach. Other deficiencies could be pointed out. The summary judgment is properly reversed.

I am not persuaded that for it should be substituted another judgment, summarily entered. There has been no motion made for a judgment on the pleadings, and the…

The sole question presented in this appeal is whether, under the admitted facts, plaintiff's title, based upon the enforcement of a judgment lien, has priority over defendants' purchase money trust deed.

The action commenced with a complaint to quiet title to real property. Defendants answered and cross-complained for declaratory relief. Each side then moved for a summary judgment in its favor. The trial court denied defendants' motion and granted plaintiff's motion. Judgment was thereafter entered adjudging that plaintiff's interest in the property was free and clear of any claim of the defendants.

Inasmuch as the facts alleged and admitted in the pleadings are sufficient to dispose of the controversy on an issue of law, it is unnecessary to discuss either the procedures employed in the trial court or the contents of the affidavits made in support of the motions for summary judgment.

The cross-complaint alleges the following transactions:

On December 14, 1962, Eura Lee Stephens and his wife Virginia executed a deed of trust in favor of defendants [fn. 1] to secure a loan. This deed "was in all respects a purchase money deed of trust (as defined by Sec. 2898 of…