dissenting:
I am unable to concur in the conclusion reached in the opinion of the majority. The facts set forth in that opinion are correct, but in my opinion the case should be reversed and final judgment entered by this court in favor of R. N. Clark.
The admitted facts may be briefly summarized. The bank was trustee in a deed of trust executed by Martin to secure Clark the payment of three notes of $400.00 each, which represented the unpaid purchase price of real estate sold by Clark to Martin. Clark discounted the notes at the bank and it became the holder of said notes. It being the holder of the notes and the trustee, when Martin defaulted in the payment of the first note, it attempted to foreclose the deed of trust and the' property was knocked out to Clark, but he never complied with his purchase by paying the $1,075.00, which he bid for the property, though the bank, as trustee, had prepared a deed for him and was ready to deliver it upon the payment of the purchase price. This attempted foreclosure took place on June 5, 1927, and some seventeen months thereafter Clark and wife made an assignment to Hooker, trustee, conveying to the trustee' all of their property, real and personal, to secure all of their debts. The debt due the bank of $1,200.00 was included •in the assignment deed as well as the property on which it was a lien. Two and one-half years after the attempted foreclosure by the bank, trustee, it, at the request of Hooker, trustee, delivered the deed to him which it had previously prepared for Clark, but which had not been delivered. Clark had never paid nny part of the purchase price. Hooker had the deed recorded .and was told by the cashier that the bank would not claim *560under the deed of assignment. Acting under the deed of assignment, Hooker sold this same property and the bank bought it for $500.00 and paid that amount to Hooker, who in turn deducted the costs and expense of sale and paid the net proceeds of sale, amounting to- $470.00, to the bank and it applied this amount as a credit on the Martin notes. After making this application on those notes, the bank then sued Clark for the deficiency or difference between the $1,200.00 debt and the net amount .realized from the sale, notwithstanding the fact that the deed of assignment contained this express provision: “It is further provided that all creditors who accept under this deed, do' so in full satisfaction of their respective claims and shall be forever barred from further recovery of any balance,” and notwithstanding the express provisions of section 5278d of the Code, which are as follows:
“Any such deed of assignment may contain a provision of the effect that those creditors who accept thereunder, do- so in full satisfaction of their respective claims, and shall be forever barred from further recovery of any balance. * * *”
Under these admitted and unquestioned facts and in the face of the provisions of the deed of assignment and the statute referred to, the trial court allowed the bank to recover against Clark for the deficiency, and the maj ority opinion confirms the trial court’s view. I am of opinion that under no circumstances should the bank be allowed to recover.
The powers of the bank, as trusteee, were expressly defined and limited by the deed of trust executed to it by Martin to secure Clark the payment of the three $400.00 notes. It had the right to foreclose the deed of trust and deliver the deed to the purchaser (Clark) upon his paying the purchase money of $1,075.00. Under no> other condition could it legally deliver the deed to Clark. It had no1 power to deliver it to Hooker, and when it did deliver it to him it disobeyed the powers conferred in the trust deed and its act in that regard was a nullity. The bank, as trustee, upon request of the bank as holder of the *561notes, could have resold the property, and this is all that it could lawfully have done.
The effect of the transaction as it now1 stands is that the bank, as trustee, in. the Martin deed of trust, has, through Hooker, trustee, in the deed of assignment, sold the property to itself without first foreclosing the Martin deed of trust. A foreclosure of the Martin deed of trust was indispensable if the bank desired to stand upon it. It is apparent that the bank, as trustee, attempted to delegate to Hooker, trustee in the deed of assignment, the right and power to foreclose the Martin deed of trust in which it was trustee. This it could not do.
When the bank learned of the deed of assignment and that the debt and property in question were embraced therein, it then had the election.to either repudiate the deed of assignment and stand upon the Martin deed of trust, or to waive the lien of the Martin deed of trust and partake of the benefits of the deed of assignment. It chose the latter. It could not have chosen both. It was present and participated in the sale of the property by Hooker, trustee in the deed of assignment; it bid on the property and bought it; it paid Hooker, trustee for the property, and accepted from him the net proceeds of sale, or $470.00, as a credit upon its. debt (the three notes), and it accepted a deed from Hooker, trustee, conveying the property to it. The very title it now has (if it has any) must necessarily be claimed by it through Hooker, trustee in the deed of assignment.
Under such circumstances the bank is bound by its election, and under our statute and the provisions in the deed of assignment it is forever barred of recovering any balance or deficiency from Clark.
The conclusion in the majority opinion that the bank received the $470.00 in its representative capacity as trustee is not warranted. It could only receive in that capacity the purchase price produced as a result of the foreclosure of the Martin deed of trust. That purchase price was $1,075.00, and *562it has never been paid. The $470.00, which it did accept and receive, was not the purchase price realized from the foreclosure of the Martin deed of trust, for that foreclosure has never taken place. The $470.00 was necessarily received by the bank as a listed creditor in the deed of assignment, in its individual capacity, and the burden of section 5278d attached.
The title to the property is not involved in this litigation, therefore it is not necessary to pass upon it.
It seems to me, beyond question or doubt, that the bank has accepted the provisions of the deed of assignment and that it is barred under section 5278d from further recovery of any deficiency or balance.
Hudgins, J., concurs in this dissent.