Christina v. McLoughlin

[411]

BISHOP, J.,

pro tem.

—• From the judgment dismissing his complaint, following an order sustaining demurrer thereto without leave to amend, plaintiff .has appealed. We find plaintiff’s cause of action for a deficiency judgment to be barred by the statute of limitations, despite the moratorium acts relied upon, and as the bar of the statute was properly presented by demurrer, the judgment of dismissal should be affirmed.

We take the facts of the case, of course, from the amended complaint. The defendant had agreed, in the note upon which plaintiff sues, to pay $22,500 and interest on March 19, 1930. The terms of the trust deed by which the note was secured are not known to us, further than that a corporation was named as trustee with power of sale in the event of default. The note was declared to be in default in July, 1934, by a duly recorded notice of default and election to sell. No sale had been made up to March 12, 1935, when the owner of the property covered by the deed of trust “filed a proceeding in the Superior Court . . . that the said petition was filed pursuant to chapter 7, statutes of 1935, and pursuant to the provisions thereof the beneficiary under the said deed of trust was prevented from completing the sale under the provisions of the said deed of trust”. No order was made in the proceeding until September 6, 1935. On September 10, 1935, the property was sold under the trust deed, and this action for the deficiency was commenced December 19, 1935.

A demurrer was interposed to the amended complaint, upon the ground, among others, that it appeared that the action had not been commenced within the time limited by the provisions of subdivision 1 of section 337 of the Code of Civil Procedure. That subdivision provides that “an action upon any contract, obligation or liability founded upon an instrument in writing” must be brought within four years. The section then continues (since 1933) : . . provided that the time within which any action for a money judgment for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as security, following the exercise of the power of sale in such deed of trust or mortgage, may be brought shall not