Honan v. Title Insurance & Trust Co.

MAXEY, J.,

pro tem.

The plaintiffs have appealed from an order duly made and entered striking out their complaint. The facts alleged in the complaint are that on March 17, 1931, a note was made, executed and delivered by William James Honan and Effie L. Honan, by William J. Nichols, her attorney in fact, to the defendants herein; that said note was secured by a deed of trust on certain real property situated in Los Angeles County, and also signed by William James Honan and by William J. Nichols, as attorney in fact for Effie L. Honan. It is further alleged that Cecilia Effie Honan and Effie L. Honan are one and the same person. The complaint was filed on August 19, 1933. The complaint further alleges that on or about the twenty-fourth day of April, 1933, the defendants caused to be recorded a notice of breach of obligation and default on the part of the plaintiffs in the payment of said note secured by said trust deed; and that thereafter the property was advertised for sale under the terms of the deed of trust to be sold on August 19, 1933.

The plaintiffs allege that the note given to defendants bears a usurious rate of interest; that the note and deed of trust were not signed by the plaintiff, Cecilia Effie Honan, and further, that William J. Nichols who signed said note and deed of trust as her attorney in fact, was not authorized or

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empowered to sign the note and deed of trust; that there is a dispute between the parties relative to the amount owing on said note, and asking that the exact amount be determined by the court in the way of a declaration; that the deed of trust is a lien or encumbrance upon the property of the plaintiff, Cecilia Effie Honan, and that it will be and remain a cloud upon her title. Plaintiffs seek relief for each of these alleged infringements of their rights, and further request an injunction to prevent the sale of the real property under the deed of trust on the nineteenth day of August, 1933.

The defendants filed a motion to strike out the complaint and also certain portions thereof. This motion was predicated upon the affidavit of the attorney of record for defendants, in which affidavit it was stated that the question therein involved was a moot question because the property had been sold on August 19, 1933, and therefore injunctive relief against the sale would be unavailing. A general and special demurrer was filed at the same time. The motion to strike out the complaint was granted, and the complaint was ordered stricken from the files. The demurrer was ordered off calendar.