Christina v. Daneri

BARNARD, P.

J.—This is an action for a deficiency after foreclosure of a trust deed given to secure a note. The note and trust deed were dated November 24, 1933, and the sale under the trust deed took place on September 28, 1935. The action was tried on April 30, 1936, and ordered submitted on briefs. On June 1, 1936, counsel for plaintiff gave notice of a motion to reopen the trial of the action in order to permit the introduction into evidence of a notice of default and election to sell, which had been recorded in San Diego County on September 14, 1934. On June 20, 1936, the court entered an order denying this motion and ordering judgment for the defendants. On November 16, 1936, findings of fact

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were filed in which the court found that the trust deed in question was not given to secure any part of the purchase price of the real property described therein, and further found that it did not affirmatively appear at the trial that the notice of breach and election to sell pursuant to which the sale was held was recorded at least one year before the date of such sale. Judgment in favor of the defendants was entered on the same day and the plaintiff has appealed.

The first question presented is whether section 2924½ of the Civil Code, as adopted in 1933, is applicable here. This section reads as follows:

“No judgment shall be rendered for the balance due upon any obligation which was secured by a deed of trust or mortgage with power of sale upon real property following the exercise of such power of sale, .if exercised at any time between the effective date of this act and September 1, 1935, unless it shall affirmatively appear that the notice of breach and election to sell provided for in section 2924 of the Civil Code, pursuant to which such sale was held, was recorded at least one year before the date of such sale. This act and the provisions of this section shall be effective to and until September 1, 1936.”

The appellant contends that this section is not applicable since this sale took place after September 1, 1935. It is contended that the power of sale can be “exercised” only if the sale is completed and that the clause “if exercised at any time between the effective date of this act and September 1, 1935,” means if the sale takes place before September 1, 1935. The reasoning advanced would be most plausible if that clause stood alone. It will be noted, however, that the last sentence of this section reads: ‘ ‘ This act and the provisions of this section shall be effective to and until September 1, 1936.” Each part of the section should be given effect, and the last sentence would have no effect if the other clause referred to made the act ineffective as to any sale taking place after September 1, 1935. The inclusion of the last sentence suggests an intention on the part of the legislature to make the section applicable to all sales taking place up to September 1, 1936, which would cover the required period of one year where notice of breach and election to sell was recorded just prior to September 1, 1935. This would seem to indicate that the word “exercised” was intended to refer to the beginning