208 P. 348 | Cal. Ct. App. | 1922
Action to obtain a decree declaring void a purported sale of real property by a trustee under a trust deed; to set aside the sale and permit the plaintiff to redeem. Judgment in favor of the defendants. The plaintiff appeals.
The deed of trust was made by the plaintiff to Title Guarantee and Trust Company, a corporation, to secure the payment of a stated indebtedness to the defendant Cora D. Meserve. It was provided therein that on default in *176 payment, the trustee was empowered to sell the property "in order to accomplish the objects of these trusts, in the manner following, namely: The party of the second part, or its successors or assigns, shall first publish notice of the time and place of such sale, with a description of the property to be sold, at least once a week for eight successive weeks, in some newspaper published in the city of and county of Los Angeles, California, and may from time to time, for one day or several days, postpone such sale by publication, by republishing the notice of sale in the same newspaper, with date of the postponement attached thereto, in one issue only, prior to the day of the postponed sale." Default having been made by the plaintiff on a payment due from him, the trustee published notice of sale to be made on December 1, 1917. This publication was made at regular weekly intervals beginning with the sixth day of October. On the first day of December, at the time and place stated in the notice of sale, the sale was, upon request of the plaintiff, postponed to the eighth day of the same month, and notice thereof was published in the manner provided for in the trust deed. On December 8th, in accordance with said postponement and notice thereof, the trustee made sale of the property to the defendant Cora D. Meserve, which sale was followed by a deed of conveyance in due form.
[1] The first point relied upon by appellant is based upon his claim that the publication of notice was not made for fully eight weeks before the advertised date of sale. Therefore he contends that no right of sale existed on the first day of December, that the continuance to December 8th was void, and that the sale was void as in excess of the powers conferred by the deed of trust. It is provided by section
[2] We find no merit in the objections to the validity of the deed of conveyance by the trustee, wherein appellant suggests that the published notice of postponement of the sale does not show the corporate seal of the trustee or any resolution of the board of directors of the trustee authorizing such postponement. Assuming, without deciding, that corporate action through the board of directors was necessary to authorize the sale, such action is implied by the recitals contained in the original notice and the corporate seal affixed thereto. [3] The postponement of the sale was a routine matter appropriately conducted by the officer of the corporation through whom the sale was made. "It is no longer held to be necessary that the ordinary everyday transactions of a corporation be evidenced by a writing attested with the corporate seal." (Smith v. Jaccard,
[4] The fact that at the time of the sale appellant informed the trustee that he was making arrangements to obtain money with which to pay the debt did not obligate the trustee to grant a further postponement of the sale. The creditor having become entitled to enforce payment of the note, the debtor has no valid ground on which to attack the validity of the sale merely because he was not allowed further time in which to pay his debt.
[5] The court did not err in receiving in evidence the trust deed, thereby overruling the plaintiff's objection that the beneficiary of the trust had not recorded in the office of the county recorder a notice of her election to cause the property to be sold to satisfy the obligation. The amended section
[6] Prior to the commencement of the trustee's publication of notice of sale, the creditor had elected to declare the whole sum of principal and interest due and payable *179 by reason of nonpayment of interest due on September 15, 1917. At least, it is so recited in the trustee's notice of sale, and in the trustee's deed to the purchaser; and the deed of trust made by the plaintiff provided for such election to be declared "without notice." The fact that on September 5, 1917, the bank in which the note was placed for collection notified the plaintiff that the stated amount of interest would be due and payable at the bank on September 15th, was not a waiver of the right to elect to declare the whole sum of principal and interest due and payable on default in the payment of that interest. Appellant makes this claim upon the ground that the interest demanded "overlapped the time of the date first stated for the attempted sale of the property by about fifteen days." Nevertheless, since the payment was not made, the right of election followed as a consequence of the default.
Appellant claims that the deed should have been rejected because at the time of the sale he was within the protection of a moratorium act. As he has not given us a reference to any moratorium act in force at that time, and does not direct our attention to anything in the record showing the contents of the "moratorium affidavit" referred to in his brief, we assume that the point is without merit.
[7] We are unable to agree with the contention of appellant that the trust deed was a mortgage, under which there could be no sale without foreclosure. The instrument is a typical trust deed, running not to the creditor but to a third party as trustee. "It has no feature in common with a mortgage except that it was executed to secure an indebtedness." On such an instrument a suit for foreclosure and sale will not lie, for the contract of the parties is that upon default the trustees shall sell, and there is no equity of redemption to foreclose. (Koch v. Briggs,
Numerous other points presented by appellant are omitted from discussion because they depend upon appellant's theory that the notice of sale was insufficient and that the trust deed was a mortgage. The record does not sustain the claim of appellant that the amount due from him was less than the amount stated in the notice of sale, or his further claim that the judgment in this action was entered in a name other than the name of the plaintiff. It is true that the clerk's certificate to the judgment-roll is entitled "Meserve v. Meserve." But it identifies the judgment by the judgment-book number and page. This judgment as contained in the judgment-roll bears the correct title.
The judgment is affirmed.
Shaw, J., and James, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on July 14, 1922, and 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 August 17, 1922.
All the Justices present concurred.
Richards, J., pro tem., and Myers, J., pro tem., were acting. *181