Hudson v. Becker

CRAIL, P. J.

This is an appeal from a judgment against the plaintiffs in an action brought against the defendants for the purpose of quieting title to certain real property. At one

[745]

time the defendants owned the property and during the period of their ownership executed a promissory note and a mortgage securing the same in favor of a Los Angeles bank. Thereafter they sold the property to F. 0. Paige and wife, who executed a promissory note and a second trust deed upon the property in favor of defendants. The trust deed was junior and subject to the mortgage. Thereafter the Paiges conveyed the property to the plaintiffs subject to the first mortgage and subject also to the second trust deed which the plaintiffs assumed and agreed to pay. Thereafter and on August 10, 1932, an instalment of principal in the amount of $750 became due upon the first mortgage note. The plaintiffs asked the bank for an extension of time within which to make the payment. The bank refused to grant an extension, and thereupon the plaintiffs made a payment of $250 and said that they were not able to pay the entire balance then due, but that they expected to pay the balance shortly. Viewing the evidence in the light most favorable to the prevailing party, which it is our duty to do, there was no extension of time given to the plaintiffs and no waiver of the default. On the contrary, the bank forthwith notified the defendants of the default. Thereafter the defendants wrote a letter to the plaintiffs informing them of their default, i. e., that the $500 had not been paid when due and advised them that unless this balance was paid it was the defendants’ intention to exercise the option reserved in the second trust deed to declare all sums secured thereby immediately due and payable. The defendants waited a week and then, in order to protect their second lien, went to the bank and paid the $500 which was in default, together with interest thereon, and thereupon they went to the trustee under their second trust deed and executed “a declaration of default and election to sell and instructions to the trustee”. After the notice of default and election to sell had been recorded the usual and legal notices of sale were given and thereafter the trustee sold the property at public sale, defendants being the purchasers, and the trustee under the trust executed and delivered to defendants a deed conveying the real property to them.