Kipp

In this action, a decree was entered in favor of respondent, Kipp, foreclosing a certain mortgage. This mortgage had been executed to Kipp by Carlos Olvera, as trastee under a certain deed of trust. The mortgage was given to sécure a promissory note made by the trustee to the mortgagee. Some time before the execution of said note and mortgage, the appellants Smith and others, together with certain other owners—all of them being tenants in common— had executed to said Olvera a deed granting to him, as trustee, certain real property, of which said mortgaged premises are a part. The plaintiff claims that the mortgage was made in the course of the trustee’s performance of his duties as such trustee, and in conformity with the powers conferred upon him by the trust deed. The appellants, as owners of interest in said property and beneficiaries of said trust deed, appeal from the decree; and they contend here that said mortgage was not executed for a purpose named by the trust deed, and was not within the scope of the powers conferred upon the trustee, and that, therefore, said instrument is void.

From the trust deed it appears that at its date the real property described therein was…