Abrahamer v. Parks

VALLÉE, J.

Appeal by defendants from a judgment for plaintiff in a proceeding for unlawful detainer.

Defendants, as trustors, executed a deed of trust as security for the payment of a promissory note. They defaulted and the trustee sold the property to plaintiff. Plaintiff gave defendants, who were in possession, a three-day notice to quit. Defendants refused to quit, hence this proceeding.

The first contention is that the complaint does not state facts sufficient to constitute a cause of action. The argument is that the complaint does not allege ownership and possession at the time of the commencement of the proceeding and that it does not allege a default on the part of the trustors. The complaint alleges that plaintiff “is the owner and entitled to possession of” the property. The allegation is sufficient. Attached to the complaint as an exhibit is a copy of the trustee’s deed which recites that default was made in the payments due on the note and obligation secured by the deed of trust, specifying them. The complaint states facts sufficient to constitute a cause of action.

Complaint is made because the court refused to permit defendants to litigate the title to the property and refused to hear evidence as to (1) whether there had been, in fact, a default; (2) whether plaintiff was a bona fide purchaser and encumbrancer for value without notice; and (3) the effect on this action of a

Us pendens

filed in another action. Section 1161a of the Code of Civil Procedure in pertinent part provides:

“In either of the following cases, a person who holds over and continues in possession of real property after a three-day written notice to quit the same shall have been served upon him, or if there is a subtenant in actual occupation of the premises, also upon such subtenant as prescribed in Section 1162 of the Code of Civil Procedure, may be removed therefrom as prescribed in this chapter.

“3. Where the property has been duly sold in accordance with Section 2924 of the Civil Code under a power of sale contained in the deed of trust executed by him or a person

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under whom he claims and the title under the sale has been duly perfected.”