Security-First National Bank v. Chapman

McCOMB, J.

From a judgment in favor of plaintiff predicated upon the granting of its motions (a) to strike defendant’s answer, and (b) for a summary judgment under section 437 (c) of the Code of Civil Procedure, defendant appeals. These are the essential facts:

The complaint alleged that on or about August 10, 1935, S. J. and G. A. Chapman Corporation executed and delivered to plaintiff a promissory note in the principal sum of $18,000 bearing interest at 7 per cent per annum and that said note was secured by a trust deed executed by said corporation to the Los Angeles Trust and Safe Deposit Company as trustee covering certain real property described therein; that contemporaneously with the execution of the note defendant herein as an individual made, executed, and delivered to plaintiff a written guarantee of the aforementioned note. Paragraph VI of the complaint read thus:

“VI. That by reason of said default, and in compliance with the terms and provisions of said deed of trust, the said Trustee, at the request of plaintiff, on or about the 21st day of July, 1939, sold said property, having first given notice of the time and place of such sale in the manner and for a time not less than that required by the laws of the State of California for the sale of real property under deeds of trust, and that at the time of sale so fixed on July 21, 1939, the said Trustee sold said property covered by said deed of trust, at public auction, to plaintiff herein, it being the highest bidder at said sale, for the sum of $9,000.00.”

Defendant in his answer, after admitting the execution of the guaranty set forth in the complaint, denied (1) that the sale by the trustee under the deed of trust was in every respect in compliance with the terms of said deed of trust and in accordance with the law in such eases made and provided, and (2) as affirmative defenses alleged:

(a) That, at the time plaintiff requested defendant to execute the guaranty, plaintiff made a reappraisement of the

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properties covered by the deed of trust and placed a value thereon which it agreed was adequate security for the note and that defendant in executing the guaranty did so “purely

pro forma”

and solely by reason of the death of the father of defendant who was president of the corporation which executed the note, to wit, the S. J. and G. A. Chapman Corporation, and that defendant understood he was executing the guaranty in effect for the estate of his deceased father.