Evarts v. Myers

VALLÉE, J.

Plaintiffs brought this action to set aside the sale of a parcel of realty made on foreclosure of a deed of trust after default. Plaintiffs are the trustors, defendant Title Service Company, the trustee, and defendant R. Reese Myers, the beneficiary, named in the deed of trust. Defendants answered, Title Service Company filing a cross-complaint seeking instructions and declaratory relief. The court found the foreclosure proceedings were fairly and lawfully conducted, that plaintiffs have no interest in the property, and directed delivery of the trustee’s deed to the purchaser. Plaintiffs, appearing in propria persona, appeal. They were represented below by R. C. W. Friday, Esquire, now deceased.

The deed of trust was executed March 14, 1947, and recorded May 23,1947. On September 22,1947, plaintiffs being, in default, foreclosure proceedings were commenced. They were cancelled in February, 1948. On July 29,1948, plaintiffs again being in default, new foreclosure proceedings were commenced. These were cancelled in March, 1949. On October 13, 1949, plaintiffs again being in default, the trustee, at the request of the beneficiary, recorded a notice of default and election to sell. The notice of default and election to sell were sent to each of the plaintiffs by registered mail on October 15, 1949. Plaintiffs refused to accept the notices and they were returned to the trustee marked “Refused and unclaimed.” On January 12, 1950, the trustee gave plaintiffs a statement of the amount of money necessary to pay in full the note secured by the deed of trust. No payment was made and no tender of any amount has been made. Notices that the sale would take place at 11 a. m. on February 20, 1950, were posted and published as required by law and the deed of trust. Plaintiffs had knowledge of the time and place of the sale. On February 20, 1950, at 11 a. m., the sale was called at the place designated in the notices, and continued for one-half hour to give plaintiffs full opportunity to attend and submit bids. At 11:30 the sale was had.

The action was originally set for trial on January 22, 1951; and on December 21, 1950, notice of trial was given to plaintiffs and their attorney. On January 22 the trial was con-

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tinned to February 26, 1951, and on that date notice thereof was given to plaintiffs and their attorney. On February 26, 1951, no court being available, the trial was continued to March 13, 1951, and notice thereof was given to plaintiffs and their attorney on March 5, 1951.