298 P. 109 | Cal. Ct. App. | 1931
The action is to set aside a sale of real property made under a deed of trust. In the court below judgment went for the plaintiff and the defendants noted in the caption prosecute this appeal. In passing, it might be noted that the position of the intervener is as an ally of plaintiffs, praying for the same relief and satisfied with the judgment entered. It will be unnecessary to recite the facts in detail or to describe the property affected, other than to mention that the real property involved was and is situate in a township other than that in which the attempted sale took place, though in the same county.
The appeal comes before us on the judgment-roll alone and it is the sole contention of appellants that the findings of fact do not support the judgment; that on the facts as found the court should have ruled in favor of the appellants. The question presented goes to the sufficiency of the notice of sale under the trust deed and also appellants present the point that, conceding the failure to give sufficient or any notice, the remedy is against the seller in damages and that such remedy is exclusive. The finding of the trial court on the question of notice is as follows: The court finds that on the seventh day of March, 1924, defendants attempted to exercise the power of sale contained in their deed of trust and in furtherance of said attempt held a purported sale of the real property covered thereby and described therein and involved in this action in the city and township of Los Angeles, state of California. That notices of the time and place of said purported sale were posted by said defendants and that the only notices of said sale that were posted in the city and township of Los Angeles were *93
posted at the following places: One copy at city hall, Los Angeles, California; one copy at the northern entrance of the Los Angeles County courthouse; one copy at the southern entrance of the Los Angeles County courthouse; one copy at the western entrance of the Los Angeles County courthouse; one copy in the Los Angeles County clerk's office in the hall of records building, Los Angeles, California. That the courthouse and hall of records of Los Angeles County, California, is a public place and the posting of the notices at the three entrances of said courthouse and in the Los Angeles County clerk's office in the hall of records amounts to posting in one place only. That the notices of said purported sale were published in a newspaper known as the "Beverly Hills News", which newspaper was printed in the city of Los Angeles, township of Los Angeles, and published in the city of Beverly Hills, township of Beverly Hills. The foregoing is the only finding on the issue of notice. It is admitted that the property involved is not situate in the township of Los Angeles but in the city of Beverly Hills. As a further part of the general outline of the case it is noted that there is no finding as to what notice, if any, was posted on the property. Appellants complain of the lack of such a finding but we deem it unnecessary to take up this point. If it is concluded that the notices set forth in the finding are not sufficient to warrant or uphold the purported sale, it then becomes immaterial as to what notice may have been posted upon the property attempted to be sold. Further, the briefs discuss the sufficiency of the publication inasmuch as the notice was published in a newspaper printed outside the township wherein the property to be sold was situate. The same situation is disclosed with reference to this phase of the case. Irrespective of whether the notice was properly published, notices would have to be posted in three public places in the township where the sale was to take place. We may repeat, the appeal being on the judgment-roll, necessarily there is a complete lack of anything to indicate the evidence upon which the trial court made its findings. However, this becomes unimportant from one angle inasmuch as appellants admit the absolute truth of the facts as found; it being their contention, however, that the finding that the posting found amounted to but one posting is in reality a conclusion of law. In this *94
connection it is well to advert to the conclusion of law as adopted in the court below. The controlling conclusion of law is as follows: "That the purported sale of the real property described, by virtue of the power contained in the deed of trust, is void and should be set aside and for naught held. That the trustee's deed based upon said sale is void." So that it makes no difference in one respect whether we consider the finding of fact that the posting in the manner listed was but a single posting as a finding of fact or a conclusion of law. On the other hand, the fact to be determined was the character and nature of the posting, including the place or places of posting. And it was a question of fact, considering the location of the places where posting was made, as to what was the actual physical result of the found posting. So, therefore, we would read the words of the finding that the posting "amounts to posting in one place" as synonymous with the words "was actually a posting in one place". First, it is appellants' contention that we are to entirely disregard this last phrase of the finding and to find anew on the question. [1] Their theory is that this court will take judicial knowledge of the conditions with reference to the places named in the finding. They contend that it is a matter of which this court, without evidence, will take knowledge. In other words, they argue that it is a well-known and generally recognized fact that the entrances to the Los Angeles courthouse are widely separated and that each entrance serves as a distinct public place for a different section of approach. And, continuing, they contend that everyone knows that the hall of records in Los Angeles is a separate and distinct building, adjoining the courthouse, though not a part thereof. That with this knowledge we are not confined to the findings of the court below to any greater degree than we would be bound by a finding that the heir apparent to the British throne was ex-officio
Governor of California. It is claimed that the facts surrounding the location of the Los Angeles courthouse and its various entrances, as well as the exact location of the hall of records in said city, are facts embraced within section 1875 of the Code of Civil Procedure, of which any court will and must take judicial notice. It is sufficient in this connection to note that no provision of the section noted warrants the claim. It may be conceded that the *95
term "judicial notice" or the facts of which such notice may be taken is not definitely circumscribed by the section. The subject of judicial knowledge has been one of much discussion throughout our jurisprudence. The better rule seems to be stated in Ruling Case Law, volume 15, at page 1057, from which we abstract: "It may be stated generally with regard to the question as to what matters are properly of judicial cognizance that, while the power of judicial notice is to be exercised with caution, courts should take notice of whatever is or ought to be generally known, within the limits of their jurisdiction, for justice does not require that courts profess to be more ignorant than the rest of mankind. . . . A matter properly a subject of judicial notice must be `known', that is, well established and authoritatively settled. . . . In every instance the test is whether sufficient notoriety attaches to the fact involved as to make it safe and proper to assume its existence without proof. . . . Judicial knowledge in any case is by no means determined or limited by the knowledge of the particular judge or court. . . . And therefore individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable and cannot be resorted to for the purpose of supplementing the record." With the foregoing in mind, we might concede that perhaps all of the trial judges in Los Angeles County do know the various entrances to the courthouse there situate and that likewise each one knows the relation of the hall of records to the said courthouse. This does not meet the requirements. However, if we use interchangeably the terms "extrajudicial knowledge" and "judicial knowledge" we find little solace for appellants here. If we assume that the court below took judicial notice of the facts, we still are faced with the finding of that court that the posting was actually in one place. Where facts are so generally known as to come within the scope of judicial notice the rule applies equally to trial courts and courts of review. It may happen that a trial court fails or refuses to take notice of a fact, of which every court should take judicial notice. In such a case a reviewing court may take such notice and hold accordingly, even to the extent of overriding the judgment of the lower court. But the court of review has no different standard of judicial notice. If it were contended that certain facts could be judicially *96
noticed by a court of review that could not be so noticed by a trial court, the contention would work its own undoing in that it would admit a restricted field of knowledge contrary to the test that facts, to be judicially noticed, must be generally known and undisputed. And so, even if we concede that the facts disputed were matters of judicial notice we must assume that the court below did take such notice in arriving at its finding. InPeople v. Mayes,
Before entering into a discussion of the remaining points urged by appellants it may be well to cite the sections of the codes governing sales under deeds of trust. Section
"3. In case of real property: By posting a similar notice particularly describing the property for twenty days, in three public places of the township or city where the property is to be sold and publishing a copy thereof once a week for the same period, in some newspaper of general circulation printed and published in the city or township in which the property is situated, if there be one, or, in case no newspaper of general circulation be printed and published in the city or township, in some newspaper of general circulation printed and published in the county. Provided that where real property is to be sold under the provision of any deed of trust the copy of said notice shall be posted in some conspicuous place on the property to be sold, at least twenty days before date of sale." [2] With these sections in mind we may now take up the claims of the appellants. They argue that from whatever angle we approach the finding, the record discloses that the notices required were posted in three places. Admittedly, this must be true in a strictly literal sense. The reason of this conclusion is that it is physically impossible to place more than one thing in the same place. Yet, the statute requires posting in three public places. And it cannot be gainsaid that if it were shown that three notices were posted on one bulletin-board there would be a posting in three places; no one would seriously contend that such a posting complied with a requirement that the notices be posted in three public *98
places. In American and English Encyclopedia, second edition, at page 829, it is stated: "The term place, in popular usage, is very indefinite. In legal parlance it is equally indefinite. The extent of the locality designated by it must generally be determined by the connection in which it is used." The obvious purpose of the statute is to give as extended notice as the term "public sale" would demand; to give notice to a sufficient number of people to insure the fairness of the sale and to promote competitive bidding. In Corpus Juris, volume 23, at page 637, we find as follows: "A `public place', as the term is used in the statutes, has been held to mean such a place that an advertisement posted in it would be likely to attract general attention so that its contents might reasonably be expected to become a matter of notoriety in the vicinity." In National Loan Inv. Co. v. Dorenblazer, 30 Tex. Civ. App. 148, at page 151 [
[3] We may note here the complaint of appellants that an affirmance of the judgment, in this respect, would unsettle many titles in the county of Los Angeles by reason of the fact that the manner of posting followed in this case is the usual method of posting notice of sales under execution or trustees' sales in that vicinity. We cannot take judicial notice of this. Without citation, it may be admitted that in some instances courts are prone to construe a statute in accord with the general construction theretofore accorded by those affected and that where for a sufficient time to establish definite property rights a custom has arisen and been recognized the courts would adopt a construction that would preserve rights thus acquired. Such a case is not before us. Under the doctrine of Smith v.Randall,
[4] The next claim of appellants is that under section
[5] Lastly, the appellants urge that even if insufficient notice was given or if the mode of giving notice did not comply with the demand of the statute, nevertheless this would not afford grounds for setting aside the sale. Their argument is that the remedy of anyone who might be aggrieved is provided in the statute giving a cause of action *101
in damages against the party making the sale. This contention merits some consideration. Section 693 of the Code of Civil Procedure provides: "An officer selling without the notice prescribed by the last section (692) forfeits five hundred dollars to the aggrieved party in addition to his actual damages." These code sections were, in effect, carried into the codes from the Practice Act. In the early case of Smith v.Randall,
It is urged that the section of the Civil Code, section
The judgment is affirmed.
Spence, Acting P.J., and Sturtevant, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 29, 1931, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 28, 1931.
Seawell, J., and Shenk, J., dissented. *103