Bennett v. California Trust Co.

SHENK, J.

The respondents moved to dismiss the appeal or affirm the judgment under rule V, section 3.

The appeal is from an order denying the petitioner’s second application for an order to postpone the sale of real property under a trust deed. This application was filed on July 19, 1935, by the petitioner as executrix of the will of William H. Bennett, deceased, pursuant to the Mortgage and Trust Deed Moratorium Act of 1935. (Stats. 1935, p. 1208.) After hearing the court made its findings and concluded therefrom that the petitioner had not made a sufficient showing for relief under the act. The sole point made on the appeal is that the court abused its discretion in denying the relief sought.

The facts upon which the court based its conclusion are briefly the following: In his lifetime, William IT. Bennett and the petitioner, his wife, executed two notes, one for $6,000, due May 21, 1932, and the other for an additional $6,330 due July 15, 1933. These notes were secured by deeds of trust on the real property which is now a portion of the estate of William H. Bennett, deceased. At the times hereinafter mentioned there remained unpaid on the principal of the first note the sum of $5,400 with interest from August 21, 1932. On the second note apparently no part of the principal or interest had been paid. There was also due under the terms of the deeds of trust certain sums advanced by the beneficiary to pay taxes and improvement bond assessments. The property covered by the trust deeds was appraised at $25,000, and the net worth of the estate was shown to be about $60,000.

On April 19, 1935, the petitioner, as such executrix, commenced a proceeding pursuant to the provisions of the first 1935 Moratorium Act (Stats. 1935, chap. 7), for an order postponing a sale pursuant to the deeds of trust. An order of postponement to September 1, 1935, was granted by the court to which that application was made. The order was conditioned upon the payment by the executrix to - the respondents on of before June 1, 1935, of the sums advanced to relieve the property of the liens for taxes and improvement bond assessments, which aggregated at that time about $1,000, together with interest due on such advancements; and upon the further payment by the executrix to the respond

[383]