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every statute, nevertheless one of his former creditors is making such contentions that the homestead can neither be sold nor mortgaged. The right to mortgage and the right to sell a homestead are two valuable property rights which the homesteader is entitled to have fully protected by the decrees of the courts. Without first paying the moral obligation, or offering to do so, the homesteader or his grantee has applied to the courts and has been given relief at law, or in equity, when necessary, fully protecting the homestead and the incidental rights flowing therefrom. Thus in the case of Lubbock v. Mellann, 82 Cal. 226, 234 [16 Am. St. Rep. 108, 22 Pac. 1145], the supreme court affirmed the judgment of the trial court issuing an injunction against the sheriff restraining him from selling the homestead property. To the same effect was Roth v. Insley, 86 Cal. 134 [24 Pac. 853). In the case of Security Loan etc. Co. v. Kaufman, 108 Cal. 214 (41 Pac. 467), the court affirmed a judgment in favor of the homesteader's wife, refusing to foreclose a mortgage on the homestead which she had not executed on her part. Lange v. Geiser, 138 Cal. 682 [72 Pac. 343], is closely parallel to the instant case; but it will be conceded that the answer of this appellant slightly distinguishes the case at bar from the Lange

In the case of Magneson v. Pacific Mfg. Co., 26 Cal. App. 52 (146 Pac. 69), the court affirming the judginent of the trial court rendered in favor of the wife of the homesteader in an action brought by her to quiet title. The latter case cites other cases from California where equity interfered to protect fully and completely the homestead right. So, in this case, we think that in view of the allegations of the pleadings, the trial court did not err in entertaining the application of the respondents for the relief which they sought.

The judgment is affirmed.


Langdon, P. J., and Nourse, J., concurred.

(Civ. No. 4543. First Appellate District, Division Two.-June 18,



ration), Respondent, v. FANNIE D. LAKE et al., Appellants.


TRUSTEES-RECITALS IN DEED PRIMA FACIE EVIDENCE.-In an action in ejectment by the purchaser at a trustees' sale under a deed of trust given to secure the payment of an indebtedness of the trustors to the beneficiary, which deed of trust authorizes the beneficiary to appoint and substitute other trustees, the mere recital in the trustee's deed of their appointment and substitution in the place and stead of the trustees named in the deed of trust

does not constituto prima facie evidence of that fact. [2] ID.-ABSENCE EVIDENCE-EQUITIES—REVERSAL-In such

action, where there is a complete absence of proof of the dve appointment and substitution of the trustees, section 44 of article VI of the constitution does not justify the appellate court in affirming the judgment in favor of the plaintiff, even though the equities are entirely lacking in the defendants' case.



APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge. Reversed.

The facts are stated in the opinion of the court.

Fred W. Lake and Walter R. Dunn for Appellants.

Fitzgerald, Abbott & Beardsley for Respondent.

LANGDON, P. J.--This is an appeal by the defendants from a judgment against them in an action in ejectment. Plaintiff alleged that it was the owner of the property described in the complaint and was entitled to its possession, which was denied by the defendant. It was admitted that on June 16, 1914, title to the property in controversy was in Fannie D. Lake. On that date, she and her husband, F. W. Lake, executed a deed of trust to J. C. Carlston and Arthur L. Harris, conveying the property as security for the payment of a debt of three thousand five hundred dollars owing to the Central Savings Bank of Oakland. The other defendants claim their interests through subsequent grant of the defendants Fannie D. Lake and F. W. Lake, and the rights of such subsequent grantees need not concern us upon this appeal under the conclusion we have reached.

The deed of trust executed by Fannie D. Lake and her husband to the trustees above named was introduced in evidence by plaintiff as was also a deed from J. C. Carlston and H. C. Sagehorn, as trustees, conveying the property to plaintiff as purchaser at a sale made pursuant to the provisions of the deed of trust of June 16, 1914.

Plaintiff relied upon these documents to establish its title to the property. This being an action in ejectment, plaintiff must recover upon the strength of its own title and not upon the weakness of the claim of the defendants. The only question presented by the record, therefore, is: Do these documents, standing alone, establish plaintiff's title? The particular attack made upon their sufficiency by appellant is that there is no connecting link between the trustee Harris, to whom the property was conveyed by Fannie D. Lake and her husband, and H. C. Sagehorn, who purports to convey to plaintiff as a trustee. Respondent points out that the deed of trust contains a provision as follows: “It is expressly covenanted that the party of the third part may, by resolution of its Board of Directors, from time to time appoint and substitute other trustee or trustees to execute the trust hereby created and upon such appointment either with or without a conveyance to said substituted trustee or trustees by the grantees herein, the survivor of them, their successors or assigns, the new trustee shall be vested with all the title, interest, powers, duties and trust in the premises hereby vested in or conferred upon the said grantee herein, and such new trustee shall be considered the successors and assigns of the grantees herein within the meaning hereof, and substituted in their place and stead. A copy of such resolution, certified by the secretary of the party of the third part (Central Savings Bank of Oakland) under its corporate seal, and acknowledged by either the President or Secretary of the said third party, shall, when recorded in the county in which the property or any part thereof is situated, be conclusive proof of the proper appointment of such new or substituted trustee or trustees.”

[1] The deed which purported to convey title to the plaintiff recited: “Whereas, the Central Savings Bank of Oakland, a corporation, by a resolution duly and regularly passed and adopted by its Board of Directors, did on the 2d day of January, 1918, substitute and appoint J. F. Carlston and H. C. Sagehorn, trustees in said Deed of Trust in the place and stead of J. F. Carlston and Arthur L. Harris, a copy of said resolution certified by the Secretary and President of said Central Savings Bank of Oakland, a corporation, under its corporate seal, and acknowledged by its President and Secretary, was recorded on the 4th day of January, 1918, in Liber 2643 of Deeds, page 16, in the office of the County Recorder of the County of Alameda, State of California."

It is maintained by respondent that the recital in the deed by Messrs Carlston and Sagehorn of the regular exercise by the Central Savings Bank of Oakland of the power given to it to substitute trustees is prima facie proof of the facts recited. This is the only real question presented upon the appeal. Regardless of the equities between the parties, we are constrained to hold that the plaintiff has not made a prima facie case.

Recitals in trustee's deeds which have been taken to be evidence of the facts recited are only those recitals which set out in the acts done in the exercise of the power, such as rotice, sale, and the like. They are, necessarily, recitals of acts done by the trustee in exercise of his power. The trustee is “the accredited historian of his acts under the power.(Il ihn v. Peck, 30 Cal. 288.) But in the present case, the only evidence of Sagehorn's status as a trustee (not of his acts in that capacity) is his own recital of it. One does not prove agency vy the statement of an agent as to his own power. (Hubback v. Ross, 96 Cal. 426, 430 [31 Pac. 353); People v. Dye, 75 Cal. 108 [16 Pac. 537]); nor can one establish legal title in his grantor by the statement of said grantor in the grant that he has such title. Under like reasoning, plaintiff, in the present action, cannot establish Sagehorn's capacity as trustee and his consequent investiture with the legal title, by Sagehorn's declaration of those facts. Sagehorn attempted to pass the legal title to plaintiff; plain. tiff must show that Sagehorn had such title. That can only be done by a showing that he was duly substituted for the trustee Harris, in whom, jointly with Carlston, the legal title rested upon the showing made by the deed of trust introduced in evidence. True, plaintiff was not compelled to offer the “conclusive proof” of this fact dosignated by the deed of trust, i. e., a certified copy of the resolution substituting Sagehorn as trustee, duly recorded in the county where the property was situated—but it should have offered some evidence which was competent of the passage of the resolution substituting Sagehorn as trustee, as preliminary to the introduction of the deed executed by him as trustee, purporting to convey the property to plaintiff.

The case of Page v. Gillett, 26 Colo. App. 204 (141 Pac. 866), seems to be directly in point. That was an action in ejectment, plaintiff claiming title through a trustee's deed. The trustees' deed to the purchaser at the sale was executed by two out of three trustees, with a recital that the third was dead. The recital was the only evidence offered of the death of the third trustee. It was held that the recital was not prima facie proof of the death of the third trustee and judgment was for the defendant in the ejectment suit. In the case of Lawless v. Stamp, 108 Iowa, 601 [79 N. W. 365], it was held that a deed by a receiver with full recitals as to the existence of the receivership and his appointment as receiver was not prima facie evidence of these matters. A deed containing a recital of a grant from a previous owner was no proof of such deraignment of title. (Crump v. Thompson, 31 N. C. 491, 493.) Recitals in a guardian's deed are not evidence that he is a guardian. (Lumber Co. v. Alwood, 141 Ga. 653, 657 [81 S. E. 1119].) "Recitals in a deed which do not constitute an essential part of the conveyance are certainly not conclusive evidence against a third person of the facts recited; neither is a recital of the power or authority of the grantor, for the making of the conveyance in ordinary cases, even presumptive evidence of the existence of such power. Thus to sustain a conveyance executed by an attorney under a power, by an executor under a will, or by a sheriff under an execution, the power of attorney, the will or the execution should be produced, as the best evidence of the power to sell." (Jackson v. Roberts', 11 Wend. (N. Y.) 422, 425.)

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