Phelps

The plaintiffs sued to have it declared that a certain deed of trust securing notes held by them is a first lien on the real property conveyed thereby, and to cancel a purported deed of reconveyance executed by the trustee named in said deed of trust, and for other appropriate relief. The defendant Mortgage Guarantee Company demurred generally and specially to the plaintiff’s fourth amended complaint. Its demurrer was sustained without leave to the plaintiffs to amend. The plaintiffs have appealed from the judgment entered in conformity with the order.

The complaint contains allegations of the following facts: On November 22, 1926, Arthur and Nellie Gilman, owners of the Nellman Apartments in Los Angeles, executed to American Mortgage Company 125 promissory notes in the principal sum of $1,000 each, bearing interest at eight per cent, and due November 22, 1931. They also executed a deed of trust on the Nellman Apartments to secure payment of the notes. Title Guarantee and Trust Company was named therein as the trustee, and American Mortgage Company was named as the beneficiary. It was the intention of the parties to execute said deed of trust as a first lien on said property and…