Matthews v. Hinton

• Decision Date: 02 June 1965
• Citation: 44 Cal.Rptr. 692,234 Cal.App.2d 736
• Court: California Court of Appeals Court of Appeals
• Parties: Clarence E. MATTHEWS and Mabel M. Matthews, Defendants, Cross-complainants and Appellants, v. A. F. HINTON, Trustee, A. F. Hinton, and Diamond Builders Finance Corporation, a corporation, Defendants, Cross-defendants and Respondents. Civ. 10787.

Page 692

44 Cal.Rptr. 692

234 Cal.App.2d 736

Clarence E. MATTHEWS and Mabel M. Matthews, Defendants, Cross-complainants and Appellants, v. A. F. HINTON, Trustee, A. F. Hinton, and Diamond Builders Finance Corporation, a corporation, Defendants, Cross-defendants and Respondents.

Civ. 10787.

District Court of Appeal, Third District, California.

June 2, 1965.

Bradford, Cross, Dahl & Hefner, Sacramento, for appellants.

J. Robert Notz, Jr., San Francisco, for respondents.

FRIEDMAN, Justice.

The trial court granted a summary judgment motion denying relief to appellants on their cross-complaint seeking damages for an allegedly wrongful sale by a trust deed holder. They appeal.

Appellants are Clarence and Mabel Matthews, husband and wife, who owned a tract of unimproved land. In May 1960 they leased it for 65 years to Nick Pandelis Homes, Inc. Rental was fixed at $350 per month during the first five years of tenancy and $400 per month during the remainder of the term, with adjustments for changes in dollar purchasing power. The lessee had power to sublet and assign. In a subordination clause the Matthews agreed to subordinate their title and to join in any deed of trust given to secure construction loans for improving the property. ¹ The next month the Pandelis corporation sublet the property to Gervais and Lucot. The sublessees wished to borrow money on the property for development purposes and to have the Matthews subordinate their interest to a trust deed. They gave the Matthews an assumption agreement guaranteeing performance of the Pandelis corporation's obligation under the master lease. Gervais and Lucot then borrowed $100,000 from Diamond Builders Finance Corporation (whom we shall refer to as 'Diamond'). The debt was secured by a deed of trust with power of sale, which was executed by Mr. and Mrs. Gervais, Mr. and Mrs. Lucot, and Mr. and Mrs. Matthews, all of whom were collectively designated as 'Trustor.' The promissory note evidencing the debt was signed by the Gervais and Lucots alone.

Gervais and Lucot defaulted on the note and Diamond, the trust deed holder, commenced sale proceedings. Gervais and Lucot filed suit against Diamond, seeking to enjoin he sale. The Matthews, who had refused to join as plaintiffs, were named as codefendants. Notwithstanding the suit, the property was sold at a trustee's sale in December 1961. Either at the trustee's sale or subsequently, the Matthews bought back the property. They filed a cross-complaint in the lawsuit, alleging that Diamond had wrongfully sold the property at the trustee's sale and seeking damages of $145,000, alleged as the market value of the land. In substance the cross-complaint alleged: (1) that the deed of trust was signed by the Matthews as sureties only, and therefore, before selling the property, Diamond should first have resorted to other assets of Gervais Eventually the injunction complaint was dismissed, but the Matthews' cross-complaint remained pending. Diamond then moved for a summary judgment. Supporting the summary judgment was an affidavit alleging that there were no agreements between the Matthews and Diamond other than the trust deed. This averment was not controverted by the Matthews' counter affidavits, which alleged only that Gervais and Lucot had knowledge of the Matthews-Pandelis lease and had agreed to maintain performance of that lease in the event of a default by Pandelis. After hearing the motion and considering the affidavits, the trial court determined that the cross-complaint presented no triable issue of fact against Diamond and granted the motion.

On a motion for summary judgment the trial court is not to make determinations of fact but only to decide whether factual issues are presented by the affidavits. (Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555-556, 122 P.2d 264.) If there is no substantial issue of fact to be tried, a summary judgment is appropriate. (Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 588, 39 Cal.Rptr. 708, 394 P.2d 548; Continental Constr. Co. v. Thos. F. Scollan Co., 228 A.C.A. 437, 39 Cal.Rptr. 432.) Appellants claim status as sureties as a matter of law; that various provisions of the Civil Code required Diamond to resort first to the property of Gervais and Lucot, the principal debtors, before selling appellants' interest at the trustee's sale; hence, that the trial court incorrectly decided the legal question confronting it in the summary judgment proceeding. In any event, appellants urge, the governing contracts are ambiguous, requiring interpretation by extrinsic evidence; hence there was a triable issue of fact demanding that the case be tried rather than decided by the summary judgment procedure.

Pertinent statutory principles are these: One who promises to answer for the debt of another of hypothecates property as security for the debt of another is a surety. (Civ.Code, sec. 2787.) A surety may require the creditor to proceed against the principal, and if the creditor neglects to do so, the surety may be exonerated. (Civ. Code, sec. 2845.) Whenever, property of a surety is hypothecated with property of the principal, the surety is entitled to have the latter's property first applied to the discharge of the debt. (Civ.Code, sec. 2850.) One who appears by the terms of a written instrument to be a principal may show that he is in fact a surety, except as against a person who has acted on the faith of his apparent character as principal. (Civ.Code, sec. 2832.)

Appellants' present claim to suretyship garb and immunities is at variance with the role in which they contracted. The suretyship relation arises where two persons are under obligation to the same creditor, but one of them bears the ultimate burden of the obligation. The obligor ultimately responsible for the debt is the principal and the other is the surety. (Everts v. Matteson, 21 Cal.2d 437, 447, 132 P.2d 476; Rest., Security, sec. 82.) Whether one is a surety depends not so much upon his relation with the creditor as upon his relation to the principal debtor. (Everts v. Matteson, supra, 21 Cal.2d at pp. 446-447, 132 P.2d 476; 4 Williston on Contracts (1936 ed.) sec. 1211, pp. 3481--3482.) In such a tripartite relationship one of the obligors may be a surety in the sense that, if he is called upon to pay the debt, he may indemnify himself by an action against the primary obligor; neverthless, so far as the creditor is concerned he contracts for a primary liability. One who signs a security document or other contract as a principal will be held as such even though the creditor knows that as between the signer and his fellow obligor, the former is only a surety. (California Nat. Bank of San Diego v. Ginty, 108 Cal. 148, 150-151, 41 P. 38; see also Budget Finance Plan v. Sav-On Food Club, 44 Cal.2d 565, 569, 283 P.2d 694; Casey v. Gibbons, 136 Cal. 368, 68 P. 1032; Estate of Chamberlain, 44 Cal.App.2d 193, 200, 112 P.2d 53, 934; Rest., Security, sec. 82, comment h; 72 C.J.S. Principal and Surety § 3, p. 516, note 25.)

The role in which appellants contracted is depicted on the face of the papers. Appellants were the owners of unimproved land. They...