(concurring):

I am in complete agreement with all that is said in Judge Jertberg’s opinion. I think I should add one further observation respecting a matter which has impressed me in the consideration of this case. When the district court considers this case, it will necessarily have in mind the stipulation of the parties, quoted in Judge Jertberg’s opinion as follows: “Although in the form of grant deeds absolute on their face, the said conveyance was in fact a security transaction reserving to bankrupt and his wife equitable title to said real property pursuant to declaration of trust executed on November 29, 1956 and recorded on August 8, 1960 by Title Insurance and Trust Company.” Substantially the same statement is contained in the referee’s finding of fact, also quoted in the opinion.

Although, as the opinion suggests, the stipulation in that form probably misled the trial court, I think it is inherently an incomplete or possibly an ambiguous stipulation, which, when read in the light of the leading case of Bank of Italy Nat. Trust & Sav. Ass’n v. Bentley, 217 Cal. 644 , 20 P.2d 940, 944 , must be held not determinative of the issues in this case.

The language of the stipulation refers solely to the effect of the conveyance to Title Insurance and Trust Company, and, as the Bank of Italy case notes, it is accurate to say as between the bankrupt and his wife, on the one hand, and the Trust Company, on the other, legal title was conveyed to the Trust Company so that as between the bankrupt and the Trust Company, it could be said that the bankrupt and his wife reserved equitable title in themselves.

The Bank of Italy case notes what it calls the “anomalous nature of deeds of trust in this state”. The anomaly is stated in that case as follows: “[T]he sum and substance of such discussion is that while the legal title passes thereunder, and the trustees cannot be held to hold a mere ‘lien’ on the property, it is practically and substantially only a mortgage with power of sale. [Citing cases] The legal title is conveyed solely for the purpose of security, leaving in the trustor or his successors a legal estate in the property, as against all persons except the trustees and those lawfully claiming under them. * * * Except as to the trustees and those holding under them, the trustor or his successor is treated by our law as the holder of the legal title.” 20 P.2d at 944 . That case followed a long series of decisions in California and has itself been cited and followed some 50 times since its decision. Thus in 1908, in MacLeod v. Moran, 153 Cal. 97 , 94 P. 604 , that court said: “The legal title is conveyed solely for the purpose of security, leaving in the trustor or his successors a legal estate in the property, as against all persons except the trustees and those lawfully claiming under them. Sections 865, 866, Civ.Code. Except as to the trustees and those holding under them, the trustor or his successor is treated by our law as the holder of the legal title.” A very recent exposition of this “anomalous nature of deeds of trust in this state”, following the Bank of Italy case, is found in Hamel v. Gootkin, 202 Cal.App.2d 27 , 20 Cal.Rptr. 372 (1962).

Thus it is apparent that the stipulation in this case merely described the effect of the deed of trust as between the trustor and the trustee. A complete statement of the resultant condition of the title would have to add to that stipulation the statement made in the Bank of Italy case as follows: “Except as to the trustees and those holding under them, the trustor or his successor is treated by our law as the holder of the legal title.”

As I view it, the right of the matter here before us is that on the admitted *49 facts here presented, except as respects the trustee, the bankrupt had legal title which must be treated as such as against all other persons including his creditors. It follows therefore that under § 70, sub. c of the Bankruptcy Act, a creditor of this bankrupt could have obtained a lien by legal proceedings at the date of the bankruptcy, such legal proceedings being the filing of the abstract of judgment pursuant to § 674 of the Code of Civ. Proc. On this remand the case will reach the trial court in that condition.