Magnus v. Morrison

DRAPEAU, J.

Plaintiffs, husband and wife, undertook to purchase real property. It was encumbered with a trust deed given to secure payment of a purchase money promissory note of $8,964.16. The note provided for payments of $90 a month.

An escrow agreement was entered into for the purpose of putting the deal through. Then it was discovered that the owners of the property from whom the plaintiffs were purchasing had failed to make five of the monthly payments, and that the beneficiary under the trust deed had directed the trustee to sell it.

The plaintiffs tendered to the beneficiary $500, which was sufficient to comply with the requirements of section 2924c of the Civil Code. Tender was refused. No objection was made to the amount of the tender or to the manner in which it was made. The tender was just refused, with no specification of any reason therefor. The tender was confirmed by a letter, which further offered to pay each of the monthly pay-. ments as they came due. This offer was also refused.

The purchasers brought this action, to enjoin the sale under the trust deed, and to declare the rights of all parties concerned.

The trial court found that there was a lawful and sufficient tender, and that in accordance with the provisions of the code section, default under the trust deed was cured. The court also found that monthly payments amounting to $1,080 had not been made, but that this was not a default under the deed of trust in view of the tender and offer. Judgment was that the plaintiffs pay the defendant beneficiary $1,580, the total amount of monthly payments then due; that the beneficiary accept this amount; and that the parties execute necessary documents to reinstate the trust deed and the obligation thereby secured.

Defendant appeals, and urges that the judgment be reversed for the reason that the money tendered was not deposited to the credit of defendant in a bank and notice given to said defendant, as required by section 1500 of the Civil Code.

On the date of the tender $450 in monthly installments was unpaid, and the beneficiary under the terms of the trust deed had elected to declare the entire unpaid balance due.

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