28 P.2d 351 | Cal. | 1934
On January 22, 1932, plaintiff became the owner of certain real property encumbered by a deed of trust given to secure a five-year promissory note executed October 14, 1927, in the principal sum of $30,000. No payment *658
was made of the installment of taxes due on the property in December, 1931, and interest payments for that month and for January, 1932, were also in arrears. Defendants therefore invoked the acceleration clause of the note to declare the entire indebtedness due and payable. Thereafter, and on January 28, 1932, notice of default was filed for record. After further proceedings duly had, and on May 25, 1932, the trustees named in the deed of trust, defendants Koenig and Kroll, sold the property at public auction to the beneficiary, defendant Berger, for the sum of $25,000. Almost immediately, to wit, on June 10, 1932, plaintiff brought this action to set aside said sale as illegal because of errors in the notice of default and other technical defects hereinafter discussed. Defendants answered; defendant Berger also cross-complained to quiet his title to the property. The cause was heard by the court without a jury. Thereafter findings of fact were rendered upholding the legality of the sale, followed by judgment in favor of defendants. Plaintiff then made a motion under sections
[1] The error above mentioned crept into the findings in the following manner: Defendants' answer referred to recordation of the deed of trust in liber 1095, instead of liber 1691. The deed of trust was in evidence, bearing correct indorsement of recordation in liber 1691, and the notice of default also made proper reference to liber 1691. However, the mistake in the answer was not called to the court's attention and, under a general finding that certain allegations of said pleading were true, the discrepancy became impliedly incorporated in the findings. Upon the hearing of appellant's aforesaid motion, the court concluded that the error was purely clerical and, as above stated, ordered the findings corrected. Appellant claims that although, as to the answer, it was perhaps a clerical error of the parties *659 defendant, when carried into the findings it became a judicial error which could not be summarily corrected, for findings may be changed by a trial court after judgment only by the granting of a motion for new trial. Appellant's position is untenable. To us it is apparent that the error was purely clerical; it had no effect whatsoever upon any of the substantial rights of the parties and appellant is in no position to complain of the correction. Furthermore, a trial court has inherent power, even after judgment, to correct clerical misprision in findings (24 Cal. Jur., pp. 1005-1007, and cases cited).
[2] Considering briefly the merits of this cause, we likewise find appellant's points to be unworthy of prolonged consideration. Section
[3] Appellant claims that the notice was defective in that it recited: "that a breach of the obligations thereunder (under the deed of trust)" had been committed and a default *660 existed in interest payments, whereas, to conform to said statute, it should have recited that a "breach of the obligation for which such transfer in trust" was "security" had occurred. In other words, appellant claims that the notice should have recited that the terms of the note, rather than those of the deed of trust, had been breached. There is nothing in this contention. The deed of trust specifically obligated the grantor to repay $30,000 according to the terms of the promissory note which it secured, thus in effect incorporating therein the obligation of the note. There is no requirement that the wording of a notice of default follow literally the wording of the statute; a substantial compliance in accord with the spirit and purpose of the statute is sufficient.
[4] Appellant complains that as the notice of breach was expressly limited to a default in payment of two months' interest, a sale to satisfy the entire indebtedness was not authorized. This criticism is not warranted. The notice not only mentioned the specific default in interest payments, but it also declared a breach of the obligation of the deed of trust — in other words, a breach of the entire obligation to pay principal, interest and taxes.
[5] In closing we may say that while appellant has asked to have said sale set aside on purely technical and nonmeritorious grounds, he has made no effort to place himself in a position to receive equity. The above conclusion renders immaterial the motion to have this court make findings. It is denied.
The order correcting findings and denying motion to set aside and vacate judgment is affirmed
Thompson, J., Langdon, J., Curtis, J., Shenk, J., Seawell, J., and Waste, C.J., concurred.
Rehearing denied. *661