McCreery

The plaintiff brought this action to foreclose a mortgage securing a note for six thousand dollars, which note and mortgage were assigned to him as collateral security for a cash loan of $1,250 made by him to the mortgagee.

There was no defense by the mortgagors, but the defendants, respondents here, interposed the claim of a trust deed on the same property which was alleged to create a lien superior to the mortgage.

The trial court found in accordance with the claim of the respondents, and this appeal is taken from the judgment subordinating the mortgage to this deed.

The uncontroverted facts in the case appear to be that respondents, Marie Otto and Charles E. Otto, sold the land in question to defendant Charlton, receiving therefor six hundred dollars in cash and four notes for five hundred dollars each. To secure these notes Charlton and wife executed the trust deed, mentioned, to the defendant and respondent Guaranty and Trust Company for the benefit of the Ottos, payees of the notes. This trust deed contains a recital that it is made “subject to a mortgage for six thousand dollars, filed concurrently herewith.” The mortgage thus referred to is the one sought to be…