Beck v. Reinholtz

MUSSELL, J.

This is an action to quiet title to real property in Orange County. Two causes of action were alleged in the complaint. The first cause of action was in the usual short form. In the second cause of action plaintiffs alleged ownership of the property; that on or about December 4, 1946, they secured a loan from defendant James M. Mc-Cauley in the sum of $1,847.41 and executed their promissory note therefor; that plaintiffs executed a trust deed on the property involved for the purpose of securing payment of said note; that McCauley transferred and assigned his interest in said note and trust deed to defendant Helen Reinholtz; that plaintiffs made no payment on said note on and after May 5, 1947; that on or about May 18, 1954, a notice of default under said trust deed was recorded and the property was sold to defendant Reinholtz in accordance with the provisions of said trust deed; that the note was subject to the statute of limitations; and that the trust deed was

[721]

void. Plaintiffs further alleged tender and offer to pay defendant Reinholtz the amount due under the trust deed.

A demurrer to the second cause of action was sustained by the trial court on March 4, 1955. On that date defendants filed an answer to the complaint and also filed a cross-complaint to quiet defendants’ title in the same property. On March 4, 1955, defendants Reinholtz and McCauley filed a notice of motion for summary judgment and for an order dismissing plaintiffs’ complaint. This motion was noticed for hearing on March 18, 1955, and was based upon the records and files in said action, together with the affidavit of defendant Helen Reinholtz. The record shows that service of the motion for summary judgment and the supporting affidavit was served by mail on plaintiffs’ attorneys Marshall Abbott and Alexander L. Oster at 669 South Westmoreland Avenue, Los Angeles, on March 4, 1955.

In her affidavit in support of the motion defendant Reinholtz set forth that the complaint does not state a good cause of action against the defendants; that plaintiffs were the owners of the real property involved until October 7, 1954; that the said trust deed was executed and delivered on December 4, 1946; that, as alleged in plaintiffs’ complaint, plaintiffs made no payments on the promissory note after May 5, 1947; that notice of default under the terms of said trust deed was recorded May 18, 1954; that pursuant to said notice of default, a notice of trustee’s sale was executed and the property was sold at public auction to affiant; that a trustee’s deed was executed and recorded; that notices of the trustee’s sale were posted in three public places in San Clemente and publication was had in accordance with all of the provisions of said trust deed; that pursuant to said sale and the purchase of the property by affiant, she entered into possession of the property and is now the owner thereof; that said sale was legally made and fairly conducted; that by reason of the default of plaintiffs under said note and by reason of the sale of the property to affiant by the trustee on October 7, 1954, plaintiffs’ title and interest in the property ceased and was terminated. No affidavits were or have been filed in opposition to defendants’ said supporting affidavit.