Quinn v. Mathiassen

[331]

SEAWELL, J.

This action was commenced by plaintiff in the Superior Court of the County of Alameda, to recover from defendant Selma J. Mathiassen, trust creator, possession of the real property herein described, which was bid in by plaintiff at a sale had under a trust deed, the title to which was perfected in his name. J. Johnson intervened, claiming ownership and the right of possession, as the grantee of trust creator Mathiassen.

Section 1161a of the Code of Civil Procedure provides that where “property has been duly sold in accordance with section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by him [creator of trust holding over] or a person under whom he claims, and the title under the sale has been duly perfected”, the purchaser thereof may remove such person who holds over and continues in possession after a three-day written notice to quit the same shall have been served upon him, and after like service upon subtenant if there be one, as prescribed in section 1162 of the Code of Civil Procedure.

The pertinent portions of the above-cited code section constitute the basis of the judgment from which the appeal herein is taken by defendant Selma J. Mathiassen and intervener J. Johnson. Selma J. Mathiassen executed her promissory note in the sum of $7,500 to Margaret Carr Quinn, plaintiff’s assignor, secured by a deed of trust of the real property described in the complaint herein as security for the performance of her obligations, as in said trust deed contained. Admitted breaches of said obligations placed her in default and said real property was sold under the power of sale contained in said trust deed, and the title thereto passed to plaintiff by virtue of said sale. After notice of intention to sell said real estate had been regularly given by plaintiff, assignee of said promissory note and deed of trust, and six days prior to the sale date, defendant Mathiassen executed a purported grant, bargain and sale deed to intervener Johnson. This deed was recorded at the request of Johnson on the very day the sale took place, at the hour of 9:44 o ’clock A. M. The claim of intervener Johnson was effectively disposed of by the trial court, which found that the Johnson deed was recorded sixteen minutes prior to said sale, and that Johnson was not the owner of said real property at the time of said sale, and that