De Arrivillaga v. Moore

BRAY, J.

Appellant De Arrivillaga appeals from an adverse judgment in an action brought by her and plaintiff Johns in an action for an accounting and injunctive relief.

Questions Presented

1. Sufficiency of the accounting (a) as to rents from tenant Fox; (b) were rents properly applied on the first deed of trust; (c) was a complete account rendered?

2. Were credits allowable for attorneys’ and management fees?

3. Was the notice of default premature?

Record

In November, 1951, plaintiff Johns and her husband, W. Harry Johns, acquired certain real property in San Francisco. In January, 1953, they executed a first deed of trust on it to Home Federal Savings and Loan Association, to secure a

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promissory note in the sum of $6,500 with monthly payments of $65. (Home Savings is not involved in this action.) July 1, 1955, the Johns executed a deed of trust (hereafter called the second deed of trust) to defendant Western Title Insurance and Guaranty Company, as trustee, to secure payment of a promissory note to defendant Moore for $3,200 payable $60 or more per month. As additional security the Johns executed an assignment of rents to Mrs. Moore. July 13, 1955, the Johns executed to Western, as trustee, a deed of trust (hereafter called the third deed of trust) to secure payment of a promissory note to appellant for $1,900 payable $25 or more monthly.

In September, 1955, defendant Moore, pursuant to powers granted in the second deed of trust and to the assignment of rents, notified all tenants of the property to pay rents to her agent, Trade Center Properties, Inc. It collected all rents thereafter until December 27, 1956.

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January 10, 1956, plaintiff Charlotte Johns obtained an interlocutory decree of divorce in which the real property was awarded to her.

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January 17, 1956, defendant Moore recorded notice of default under the terms of the second deed of trust, and later gave notice of sale. However, further proceeding was enjoined in this action. Appellant then proceeded to foreclose the third deed of trust. December 12,1956, the trustee, pursuant to such foreclosure, conveyed plaintiff Johns’ interest in the property to appellant subject to defendant Moore’s second deed of trust. At appellant’s request, defendant Moore delivered an accounting of rents to appellant, which the court found was complete from September 19, 1955, to December 27, 1956, and that any errors therein were not prejudicial to plaintiffs.