Hamilton v. Carpenter

McCOMB, J.

From an order denying defendants' motion to set aside a sale of real property pursuant to a decree foreclosing a deed of trust, defendants appeal.

The essential facts are:

Defendants executed a deed of trust to secure a promissory note payable to plaintiff. This deed of trust was foreclosed as a mortgage pursuant to the requirements of section 725a of the Code of Civil Procedure. (See

Hamilton

v.

Carpenter,

15 Cal. (2d) 130 [98 P. (2d) 1027].) Thereafter on December 3, 1940, the property described in the deed of trust consisting of two separate parcels of real estate was sold en masse to plaintiff after the commissioner appointed by the court

[448]

had called for bids separately on each of the parcels and received none.

Defendants rely for reversal of the order on two propositions which will be stated and answered hereunder

seriatim.

First: The sale was invalid because no notice of sale was (a) posted upon the property sold, (b) given either defendant pursuant to the terms of section 692a of the Code of Civil Procedure, or (c) given either defendant in accordance with the provisions of the deed of trust.

This proposition is untenable for the reason that the law is established in this state that a failure to give proper notice of a judicial sale of real estate does not invalidate the sale or constitute sufficient reason for setting such sale aside. If proper notice is not given, defendants’ exclusive remedy is that provided in section 693 of the Code of Civil Procedure, which section is practically identical with section 222 of the California Practice Act, and which was the basis of the decision of our Supreme Court in

Smith

v.

Randall,

6 Cal. 47, 50 [65 Am. Dec. 475]. (See, also, in support of the foregoing rule