Rosenberg v. Janssen

McNUTT, J.,

pro

tem.

“The only question for determination on this appeal is whether or not section 29241/2 of the Civil Code is constitutional and retroactive” (appellant’s opening brief, page 15); or, as respondent puts it, “the sole ground of appeal is the claim that Civil Code, section 29241/2, applies to this ease”. The section 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.”

On October 4, 1927, defendants E. A. and Isabel Janssen executed a two-year note and trust deed for $10,000. (Tr., p. 3.) On February 3, 1928, defendants E. A., Clayton R., and Florence Ethel Janssen executed another two-year note and trust deed for $12,000. (Tr., p. 9.) On May 4, 1933, notices of breach were recorded. (Tr., p. 6, f. 17; Tr., p. 12, f. 36.) Notices of time and place of sale were posted August 9, 1933, and published August 9, 16, 23 and 30, 1933. (Tr., p. 7, f. 19; Tr., p. 13, f. 39; Tr., p. 35, f. 105.) On September 5, 1933, one parcel of property was sold for $7,000. (Tr., p. 7, f. 21.) On September 6, 1933, the other parcel was sold for $8,500. (Tr., p. 14, f. 40.) Suit for the balance remaining unpaid on both notes was filed October 2, 1933. (Tr., p. 16, f. 47.) After trial and before decision (Tr., p. 39, f. 116), the court, on February 15, 1934, vacated the submission of the cause, permitted plaintiffs to amend the complaint to allege the fair market value of the realty at time of sale, and appointed an inheritance tax appraiser. (Tr., p. 39, f. 116.) No objection to these orders was made. The requisite amend

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ment was filed, counsel stipulating it was deemed answered. (Tr., pp. 23-26.) On February 26, 1934, a further hearing was had. The appraiser reported the fair market value as $1500 above the total sale price. (Tr., p. 40,. f. 118.) Judgment for plaintiffs followed, defendants receiving all credits claimed, including said $1500. (Tr., p. 40, f. 119.)