Berry Hotels System v. Capitol Properties, Inc.

LANGDON, J.

This is an action to have a trustee’s sale of property declared void. Judgment was for the defendants, and plaintiff appealed on the judgment roll.

In 1926 plaintiff issued and sold bonds in the sum of $325,000, secured by a deed of trust upon its real and personal property in Sacramento County. After delinquencies had occurred in payments of principal and interest, defendant trustee published and posted notice of sale of the real property, and on March 13, 1935, the same was sold to defendant Capitol Properties, Ine. Subsequently plaintiff brought this present action to set aside the sale on the ground that no notice of default was recorded in the office of the county recorder of Sacramento County three months prior to the sale.

Plaintiff relies’upon an interpretation of section 2924 of the Civil Code. That section provides that the power of sale in a deed of trust shall not be exercised unless notice of default be recorded at least three months before the sale. It exempts from its provisions a power of sale in a mortgage or deed of trust given “to secure the payment of bonds or other-

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evidences of indebtedness authorized or permitted to be issued by the commissioner of corporations”. The present bond issue comes within this exception, and accordingly the express language of section 2924 appears to refute plaintiff’s contention.

Plaintiff, however, advances the following argument: Section 2924 violates the Fourteenth Amendment to the federal Constitution and other provisions of the California Constitution prohibiting discrimination; by reason of this unconstitutional discrimination, the section is not rendered wholly void, but is subject to a construction which will extend its provisions for three months’ notice of default to the excepted class of trust deeds in which plaintiff’s obligation falls, namely, trust deeds to secure bonds authorized by the Commissioner of Corporations.

It is too clear for discussion that the second part of plaintiff’s argument is unsound. If section 2924 does make an unconstitutional discrimination between classes of obligations, the entire section with its three months’ notice requirement is void; the court cannot rewrite the statute to make it cover the excepted classes, for there is not the slightest evidence that this would be in accordance with the legislative intent. (See