Weaver v. Bay

DEVINE, J.

Appellant Emma P. Weaver, beneficiary under a deed of trust, brought this action for declaratory judgment, for deficiency judgment, and for damages for waste allegedly impairing the security. The action is against the trustors, George and Myrtle Bay, against Goldie Selfridge, who expressly became an obligor on the note, and against strangers to the title, Calvin, Maureen, Elzy and Marie Jordan. The trial court (1) declared that plaintiff is entitled to file notice of default and to proceed under power of sale, and to recover from the sale the balance due; (2) found that certain changes to the real property made by Selfridge did not damage the real property but enhanced its value, and that the value exceeds the balance due on the note; (3) found that respondents committed no waste; and (4) declared that the deed of trust is one for purchase money and that no deficiency judgment could be had.

Fads and Decision on Issue of Deficiency Judgment

Plaintiff filed notice of appeal from that part of the judgment limiting her recovery to foreclosure, and from the judgment in favor of the Bays and the Jordans, but she also proceeded to sell the property under power of sale, and she bid it in at $12,000 (there being no other bids), which was about $4,000 less than the amount then due on the note. It is not clear whether appellant presently contends that she should have been awarded deficiency judgment, but the pre

[561]

trial order states this contention to he one of the issues. Deficiency judgment could not have been awarded because the deed of trust and chattel mortgage were made to secure the purchase price (Code Civ. Proc., § 580b). The same rule applies to the assuming grantee, Selfridge

(Stockton Sav. & Loan Bank

v.

Massanet,

18 Cal.2d 200 [114 P.2d 592]). Besides, when plaintiff chose to sell under the power of sale, which the judgment declared it was her right to do, she incurred another proscription against deficiency judgment, namely, that contained in section 580d of the Code of Civil Procedure, which forbids deficiency judgment after exercise of power of sale.