## Facts

- Briggs executed a $4,400 promissory note payable to Koch, with an acceleration option upon default in interest.
- To secure the note, Briggs and his wife conveyed real property to a third-party trustee for Koch’s benefit under a deed of trust containing an express power of sale.
- After Briggs defaulted on interest, the trustee gave the notice required by the trust deed, sold the property at public auction, and conveyed it by trustee’s deed to Koch as the highest bidder.
- Koch sued Briggs in ejectment, alleging the trustee’s deed gave Koch legal title and an immediate right to possession.
- Briggs argued the deed of trust functioned as a mortgage, invoking a statute stating a mortgage is not a conveyance permitting possession without foreclosure and sale.

## Issues

1. Whether a deed of trust securing a debt and authorizing sale on default must be treated as a “mortgage” requiring judicial foreclosure before the creditor (or purchaser) may recover possession.
2. Whether the statutory prohibition against treating a mortgage as a conveyance barring possession without foreclosure applies to a trust deed sale conducted under an express power of sale.

## Decision

- The Supreme Court of California reversed the judgment for Briggs and remanded with leave for Briggs to answer.
- The court held the instrument was a deed of trust with a power of sale, not a statutory mortgage.
- The court held the statutory restriction on mortgages did not apply to the trust deed.
- The trustee’s sale, conducted in accordance with the deed’s terms, conveyed legal title to Koch, permitting Koch to maintain ejectment.

## Legal Principles

- A deed of trust conveying property to a trustee with an express power of sale on default is not treated as a statutory mortgage merely because it secures a debt.
- Statutes barring a mortgagee from recovering possession without judicial foreclosure apply to mortgages, not to trust deeds structured around a trustee’s contractual duty to sell upon default.
- A properly noticed trustee’s sale conducted pursuant to a valid power of sale, followed by conveyance, passes legal title to the purchaser, who may seek possession based on that title.

## Conclusion

The court recognized the enforceability of power-of-sale remedies under deeds of trust as distinct from mortgage foreclosure requirements, holding that a completed trustee’s sale transfers legal title sufficient to support an ejectment action without judicial foreclosure.


Koch v. Briggs, 14 Cal. 256 (Cal. 1859)