202 P. 964 | Cal. Ct. App. | 1921
Appellant does not question the accuracy of the following statement of the facts, which is substantially as made by respondent: The respondent is the owner and holder of the promissory note in the principal sum of $11,580, set forth in her complaint, it having been distributed to her on January 24, 1917, in the matter of her father's estate. At the time she became the owner thereof there was likewise distributed to her a mortgage securing said note and covering 77.6 acres of land situated in Yolo County. This mortgage lien was subject to a deed of trust executed by defendant to secure the payment to the People's Savings Bank of Sacramento of a promissory note in the principal sum of $10,000.
At the time this note and mortgage were distributed to the respondent the bank was demanding payment of its note and the trustees under said deed of trust had begun the publication of notice of sale of the real property. The trustees continued the sale several times, and on February 26, 1917, sold the property at public sale, and respondent purchased the same for the amount due the bank.
On October 25, 1918, respondent brought this action to recover the amount due upon her said promissory note less a credit given appellant thereon voluntarily, which credit was supposed to represent the difference between the amount paid by respondent for the land and the price which might be obtained for it from another purchaser within a reasonable time.
Appellant, as her main defense, set up in her answer to respondent's complaint that respondent should have brought an action to foreclose the mortgage securing said note, under section
[1] In support of her first contention appellant cites a long line of decisions from this state of which Brown v. Willis,
There would seem to be no doubt that the mortgage lien was extinguished by the sale under the trust deed; in other words, that, as purchaser, the plaintiff became *766
the owner of the land free from any subsequent encumbrance. That this is ordinarily the effect of such sale is settled by the authorities. In Metropolis etc. Sav. Bank v. Barnet,
If the purchase had been made herein by an outsider for the amount due the bank it would not be disputed that the lien of respondent's mortgage would thereby be destroyed; but it is thought by appellant that the situation is different by reason of the fact that the holder of the inferior security was the purchaser. It is not contended that there is anything illegal or immoral in such purchase or that any element of fraud, deceit, or overreaching was involved in the sale herein, but it is claimed that by virtue of section
The cases cited by appellant wherein the mortgage lien was continued, notwithstanding an apparent extinguishment, involved equitable considerations in favor of the mortgagee that in good conscience required the preservation of the security.
In Carpentier v. Brenham,
In Brooks v. Rice,
Matzen v. Shaeffer,
In Swain v. Stockton Sav. etc. Soc.,
In Tolman v. Smith,
In Shaffer v. McCloskey,
In Randall v. Duff,
It seems apparent to us that these cases and others along the same line are essentially different from the case before us and we deem it unnecessary to go further with the consideration of this point.
[2] We have already referred to the other defense set up in the answer and cross-complaint. There is evidence *770 in the record to sustain the view of the trial court that the alleged agreement was never consummated by the parties. An offer was made by respondent to appellant for the protection of the interests of both, to enter into an agreement quite similar to that set forth in the answer, but modifications were suggested by the latter, and from the correspondence in relation to the matter, which is set forth in the brief of respondent, it is a rational conclusion that the minds of the parties never met. It cannot be said that the finding as to that issue is unsupported.
Some other criticism is made of the findings, to which brief reference may be had. The court found: "That said note was executed for and in consideration of the sum of $11,580 United States gold coin loaned by said O. A. Lovdal to the defendantat the date thereof," whereas, it is the claim of appellant that the note was given for a part of the purchase price of the tract of 38.8 acres of land which she bought from said Lovdal. But the variance, if it be such, is entirely immaterial. The validity of the note was not questioned and it makes not a particle of difference whether you call the consideration money loaned or owed for the purchase price of the land.
[3] Appellant claims that there is no specific finding as to the value of said land. The court, however, having found that the parties did not enter into the agreement upon which appellant relies, the value of the property became unimportant. (Keegin v. Joyce,
We have carefully considered the points made by appellant, but we think no sufficient showing has been made to justify an interference with the conclusion of the court below.
The judgment is, therefore, affirmed.
Prewett, J., pro tem., and Finch, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 29, 1921.
All the Justices concurred.
Lawlor, J., was absent Richards, J., was acting. *771