269 P. 614 | Cal. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *572 THE COURT.
This action to quiet title and to set aside a trustees' sale and deed covering certain real property was instituted in March, 1924, approximately five years subsequent to such sale. The trial court found all material issues in favor of the defendants and judgment was accordingly entered. Upon appeal the judgment was affirmed by the district court of appeal, first appellate district, division two. [1] The appellants' petition for hearing herein was granted in order that this court might more fully consider the contention that appellants were, under the circumstances disclosed by the record, entitled to the relief sought because of the failure of the respondent bank to give them personal notice of the contemplated sale of the property under the power contained in the trust deed. Incidentally, there is no provision or requirement in the trust instrument for the giving of such personal notice. It appears that the respondent bank did not immediately, upon breach, exercise its right to direct a sale of the premises involved but, on the contrary, gave the appellants every opportunity over an *573
extended period of time to meet their obligation. Having heretofore accepted whatever benefit may have accrued to them as a result of the respondent bank's delay in asserting its right to direct a sale, the appellants now state that such conduct served to lull them into inactivity and caused them to rest secure in the belief that no sale would be made until they had been personally notified thereof. We have examined the record and conclude that this contention cannot be sustained. The trial court found, and the finding is amply supported by the evidence, that the respondent bank did not by its conduct lull the appellants into inactivity or a sense of security. The only notice specified in the trust instrument called for publication of notice of sale "at least once a week for three weeks" in a newspaper having a general circulation in the county wherein the property is situate. That the sale was in strict accordance with the terms of said instrument was found by the trial court. The authorities indicate that it is sufficient if such notice be given as is required by the trust deed. (Kennedy v. Dunn,
With this prefatory statement we adopt as the decision of this court the opinion of the district court of appeal, above referred to, written by Mr. Justice Sturtevant and concurred in by Mr. Justice Nourse and Mr. Presiding Justice Koford. It reads:
"The plaintiffs commenced an action against the defendant Bank and its grantee to set aside a sale made by the trustees under a deed of trust. The defendants appeared and answered and a trial was had in the trial court before the court sitting without a jury. The court made findings in favor of the defendants, and a judgment was entered thereon. The plaintiffs made a motion for a new trial, the motion was denied and the plaintiffs have appealed, bringing up a bill of exceptions. The portions of the record necessary to the consideration of any given point will be stated in connection with the discussion of the point.
"1. The plaintiffs complain because they were not given actual notice of the intended sale. The trust deed did not contain a provision requiring actual notice. On the contrary, the sixth paragraph provided that if the debtor failed to pay his interest at the time provided that in that event the beneficiary might consider the debt as immediately due and payable and that the trustees on the written application of the beneficiary might proceed to sell the property. The plaintiffs contend that the defendant Bank waived the provision just referred to by its conduct. They call to our attention that from the time the loan was negotiated that they were frequently in arrears in the payment of interest, etc., and notwithstanding that fact their payments were accepted when tendered and they cite and rely on the rule stated in Boone v. Templeman,
[3] "2. The plaintiffs contend that an unfair advantage was taken of them. They assert that they learned the foreclosure had taken place on March 24, 1919, and that on March 28, 1919, Mr. Gehring and Mr. Blais called at the Bank and offered to pay plaintiffs' indebtedness and the Bank refused the offer. They call to our attention that on March 27, 1919, the defendant Bank adopted a resolution to sell the property to A.G. Ramstad for $8,500, whereas the Bank had foreclosed on it for $6,425.05. The plaintiffs cite and rely on Winbigler v. Sherman,
[4] "In connection with this point we understand the plaintiffs to contend that Mr. Giacomazzi could not act as trustee because he was an officer of the defendant Bank. They cite and rely on Wickersham v. Crittenden,
[5] "The plaintiffs say that the claim of the Bank, `including costs and expenses of sale, was $6,425.05'; that *577 the property was sold for $6,525.05; and they assert that the trustees have wrongfully failed to pay them the balance claimed to be $100. Between the date of the execution of the notes and the date of the sale the property was vacant at times and in need of care. The trust deed authorized the Bank or the trustees, `4. . . . to enter, hold, protect, repair, and care for said property, including improvements, trees, vines and crops thereon, as they or either of them see fit . . . all at the trust and charge of said trustors. . . .' It also authorized the trustees, after sale made, out of the proceeds to pay `6. . . . first the expenses of sale and these trusts including reasonable compensation for their services, counsel fees of $200.00 and cost of certificate or abstract of title to time of sale, all to accrue on any default of said trustors hereunder, next all amounts with interest due from said trustors pursuant to paragraph fourth of this instrument. . . .' The attorney for the bank, Mr. Witten, made the bid. He testified: `The amount of the bid made by me was $6525.25 and was made up of principal and interest $6300.05, advertisement $25.00, attorneys fees $200.00. One hundred of my fee went to pay a party who had done work on the orchard.' There was no cross-examination and no contradictory evidence. It is clear that the trustees do not wrongfully withhold $100.00 or any other sum.
[6] "3. The third point made by the plaintiffs is that there was no devolution of title. The point involves a consideration of the following fact. The deed of trust as originally executed conveyed the property to M. Lynn and A.L. Crabb as trustees. It also provided that in the event of a default the trustees could sell the property. Furthermore, it provided (omitting irrelevant parts), `said beneficiary may, at any time by instrument in writing appoint a successor, . . . or discharge and appoint a new trustee in the place of any trustee named herein or acting hereunder, . . . who shall have all the estate, powers, and duties of said trustee predecessor.' By an instrument in writing dated March 6, 1917, the Bank appointed E.P. Giacomazzi in the place and stead of M. Lynn. Thereafter Giacomazzi and Crabb conducted the trustee sale and conveyed the property. Lynn did not join nor did he execute a deed. Under the facts it was not necessary. (Wood v. Gridley, *578
"The plaintiffs invoke sections 1091-1135 of the Civil Code and section 1871 of the Code of Civil Procedure. Those sections have no application to the facts.
[7] "4. The trust deed provided that in making a sale the trustees should `publish the time and place of such sale . . . at public auction at the front door of the county courthouse in the county of Santa Clara . . .' The notice as published omitted the word `house' and was worded `front door of the county court in San Jose.' There is no claim that the sale as made was not made at the front door of the county courthouse at San Jose in the county of Santa Clara. The notice as published contained an exact reference to the date, parties, and the book and page of the recordation of the trust deed. That deed contained the correct information. That reference cured the slight defect of which the plaintiffs complain. (Lau v. Scribner,
[8] "5. In this same connection it is contended that the notice was not published in a newspaper of general circulation. The notice was published in the Daily Record. A decree of the superior court adjudging the Daily Record to be `a newspaper of general circulation' was introduced in evidence. The trial court made findings on the issue against the plaintiffs. As we understand, the plaintiffs contend that the adjudication was made two years prior to the date of the sale and that the adjudication is no evidence that the Daily Record was at the time of the sale a newspaper of general circulation. There was no evidence that the judgment determining the status of the Daily Record had been vacated. There is nothing in the record, therefore, from *579
which it can be argued that the findings made by the trial court on this branch of the case are not sustained by the evidence. (In re Simpson,
[9] "6. In making their sixth point the plaintiffs state that the trustees did not do their duty and continue the sale for want of bidders. They point out that there was only one bidder, the officer of the Bank; they call attention to the fact that it is their claim that the property was sold for a little over $6,000 when it was of a value of nearly $25,000; and they argue that to uphold the sale would be to uphold a set of facts that was tantamount to a fraud. The argument would be impressive if it were sustained by the record. But the record discloses that at the time of the sale there was only one bid. There was no request made by anyone that the sale should be adjourned to a day certain. The court found that the property was not of a value of $25,000, and that it could not have been sold for more than $8,500. That finding is supported by the evidence. In the absence of any other facts supporting the claim that the sale should have been adjourned the plaintiffs may not complain. (Freeman on Void Judical Sales, sec. 32.)
[10] "7. It is next contended that there was no sale. That fact was alleged in the plaintiffs' complaint and the trial court made findings against the plaintiffs. In presenting the point to this court we understand the plaintiffs to contend that when Mr. Witten, the attorney for the Bank, appeared at the sale and made a bid, that his act was a nullity because he held no written instructions at the time, no writing was issued at the time, and no money was passed at the time. It was not necessary that he hold written instructions, nor that a contract be executed on the doorsill of the courthouse at the time of the sale, nor that money should pass at that same time and place, nor that the notes be surrendered. The writings subsequently made were sufficient. (Bank of Orland v. Finnell,
[11] "8. The eighth point made by the plaintiffs is that the sale was not made at public auction and was therefore void. In other words, they contend that because the auction was not conducted by a licensed auctioneer then it was not a public auction. The power to license is vested in the *580
city of San Jose by virtue of the terms of its charter, article I, division 2. (See Stats. 1915, p. 1874.) No ordinance was introduced which shows that auctioneers are licensed at that place or which purports to regulate auctions or define what is a public auction. The words `public auction' are not defined by statute and therefore they must be taken in their ordinary sense. (Estate of Gird,
[12] "9. The plaintiffs contend that the sale was made by one only of two trustees and therefore void. They note the fact that the sale was actually conducted by Giacomazzi. The rest of their argument is the same as made under division 3, supra. For the reasons there stated, it is clear that the argument is without merit. Moreover, the deed of trust authorized the two trustees to make the sale. It neither directed nor required that the two should attend the sale, nor that both as in a duet conduct the auction.
[13] "10. It is next contended that the sale was made without consideration. In this connection the plaintiffs make two complaints — they object because the trustees did not take up the notes and return the notes to the makers and they object because the trustees did not require the Bank to pay cash. As to the first complaint it does not come within the terms of the trust deed. It is wholly silent on the subject. If the makers wanted the notes surrendered to them, it was their duty to apply to the Bank therefor. As to the second complaint, it is quite clear that the deed provided that the sale would be for cash, however, if the beneficiaries bid at the sale, the deed contained no language that commanded the trustees to require that the Bank carry to the sale a sack of cash, make its bid, obtain its deed, pay in cash, and then demand back the cash and credit it as a payment on the notes. Having determined their duty to make a sale, the trustees had the right to conduct it as they did. The idle act of carrying around the sack of cash is not mentioned in the contract and `the law neither does nor requires idle acts.' (Civ. Code, sec.
"11. The plaintiffs contend that plaintiffs have been deprived of their property without due process of law. That point is but another method of arguing the contentions presented in the preceding divisions. For the reasons stated above the point must be ruled against the plaintiffs.
"We have taken up and discussed each point made in the opening brief. In their closing brief the plaintiffs, for the first time, set forth certain errors of law. There are two reasons why we do not take up each one and discuss it. If the plaintiffs relied on said errors or any one of them, the plaintiffs, in fairness to the defendants and to the court, should have presented such points in their opening brief. (2 Cal. Jur., p. 734, sec. 424.) In the second place, it is clear if we make a detailed comparison, that the points stated in the opening brief were but another method of stating the errors of law which plaintiffs enumerate in their closing brief.
"We find no error in the record."
The judgment appealed from is affirmed.
Rehearing denied.
All the Justices concurred. *582