Carpenter v. Pacific States Savings & Loan Co.

WOOD, J.

Defendant appeals from a judgment in favor of plaintiff in the sum of $74,445.33 rendered for the use and occupation of certain real property down to the date of the judgment, June 1, 1936.

Plaintiff obtained a judgment against Boulevard Properties Company, Ltd., on December 16, 1931, in the sum of $10,000 and recorded an abstract of judgment on February 10, 1932. Plaintiff levied execution on September 6, 1932, upon certain real property in Los Angeles on which was located the building known as the American Storage Building in which the Boulevard company had been carrying on a warehouse business. Pursuant to the writ of execution this property was sold on October 10, 1932, for the sum of $9,000 and a certificate of sale was .issued to plaintiff by the sheriff.

Before the entry of plaintiff’s judgment against the Boulevard company there was on record a deed of trust, dated May 16, 1930, given by the Boulevard company to the defendant in the present action. This deed of trust was given to secure a loan to the Boulevard company in the sum of

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$275,000. On May 20,1932, the Boulevard company defaulted in its payments due under the terms of the note and trust deed and the notice of breach and election to sell were recorded by defendant on August 3, 1932.

Before plaintiff levied execution under his judgment a contract was entered into, under date of August 24, 1932, between the Boulevard company and defendant, which, after referring to the deed of trust and to the default in the performance thereof and to the fact that the deed of trust provided in the event of default that Pacific Company was entitled to the immediate possession of the premises, together with the business conducted therein, contained in substance the following provisions: (1) Boulevard, Ltd., delivers the possession of said premises to Pacific Company, (2) all accounts receivable from rentals shall be pro rated as of the date of the contract, all rentals accruing after date of contract to belong to Pacific Company, (3) Pacific Company agrees to release Boulevard, Ltd., from any deficiency upon said promissory note which may be due after the pending trustee’s sale is held, (4) Pacific Company shall not be obliged to account to Boulevard, Ltd., for any rents collected for the period to the date of trustee’s sale, (5) Boulevard, Ltd., shall execute a deed to said property to a nominee of Pacific Company, (6) the delivery of said deed and the delivery of possession shall not satisfy, pay or discharge in whole or in part any sums due or to become due under said deed of-trust, but shall constitute solely the consideration for the release of Boulevard, Ltd., from any liability for the payment of any deficiency remaining upon said promissory note after all security therefor is exhausted.