Mortgage Guarantee Co. v. Smith

NOURSE, P. J.

Plaintiff sued in unlawful detainer and had judgment for restitution of the premises and for accrued rents. The defendants admit everything essential to plaintiff’s recovery except the validity of its title. They have appealed on the judgment roll alone and hence we have a record consisting of the pleadings, the findings, and the judgment.

Preliminarily the appellants argue that the action is not in unlawful detainer but is one to try title. The question is not a new one. In

Nineteenth Realty Co.

v.

Diggs,

134 Cal. App. 278, 288 [25 Pac. (2d) 522], and

Hewitt

v. Justice’s

Court,

131 Cal. App. 439, 443 [21 Pac. (2d) 641], we held that in actions brought under section 1161a of the Code of Civil Procedure the question of title must be tried when controverted as a necessary element of the remedy of unlawful detainer. Here the respondent is suing under the authority of the third subdivision of the section—“Where the property has been duly sold . . . under a power, of sale contained in a deed of trust ... appellants answered attacking the validity of the sale; hence the case comes squarely within the rule cited.

Appellants first attack the sale because it was consummated in Los Angeles County, whereas the property was

[620]

located in San Mateo County. The respondent replies that a sale outside the county of San Mateo was permitted by the deed of trust. This instrument is not in the record but it must have been in evidence before the trial court. Since the duty is on appellants to show error we must assume that the evidence supported the trial court’s findings covering the validity of the sale. This must be so unless the statutes limit the rights of the parties to agree as to the place of sale. Section 694 of the Code of Civil Procedure, as amended in 1931, provides that all sales under a deed of trust “hereafter executed” must be held in the county where the property is situated. But the deed of trust involved here was executed before the amendment and is therefore not controlled by it. No authorities are cited holding that, before the amendment, sales should be made only in the county where the property is situated and we have not found any. To the contrary, authorities are abundant holding that the sale may be held at any suitable place within the discretion of the trustee in the absence of a statute to the contrary. (41 C. J., p. 967; 3 Jones on Mortgages, 8th ed., sec. 2386.) It should be noted that the findings disclosed that all the requirements as to notice and as to all other steps leading to the sale were complied with. No fraud or other injury to appellants appears from the record and we must assume that the sale was fair and without injury to any interested party.