Powell v. Alber

HERNDON, J.

Plaintiff appeals from the judgment of dismissal entered after defendants’ demurrer to her fourth amended complaint had been sustained without leave to amend. At the hearing on this demurrer counsel for plaintiff indicated that there were no additional facts that he desired to plead.

Both parties agree that the sole question presented by this appeal is whether or not the trial court properly determined that the provisions of section 580b of the Code of Civil Procedure

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precluded plaintiff from recovering the deficiency judgment sought by her in this action. We hold that the trial court decided this determinative issue of law correctly.

Plaintiff is the successor in interest of Robert and Maurine Holcomb who entered into a land purchase contract with Star Valley Ranch, a corporation, in 1958. On December 29, 1960, following extensive negotiations and the signing of complex escrow instructions and supplemental agreements in clarification thereof, the Holcombs assigned their interest as purchasers under this existing land contract to respondents. In connection with their purchase of the interest of the Holcombs in said contract, respondents executed a document captioned

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“Agreement Supplemental to Assignment” under which they promised to pay the Holcombs $41,092.97 with interest at the rate of 6 percent per annum payable at the rate of $2,500 semiannually. Paragraph C of this agreement provided:

‘‘Should default be made in the payment of any installment of principal or interest to be paid and such default shall not be cured within sixty days after notice in writing specifying such default and requiring same to be remedied, then Holcomb may (1) after the default in at least two payments as specified herein, by notice in writing to Alber Group declare the entire sum of principal and interest provided for in paragraph B to be immediately due and payable, in which event the members of the Alber Group jointly and severally agree to pay the whole thereof; or (2) in lieu thereof, Holcombs at their option may at any time when there shall be one-half or more unpaid of the principal sum set forth in paragraph B hereof, by notice in writing to the Alber Group, require Alber Group to reassign to Holcombs said Agreement for Sale of Beal Estate dated July 26, 1958 as amended, above described in paragraph A, and immediately upon such demand, the Alber Group agree to reassign said Agreement to Holcombs and to quitclaim to Holcombs all of their right, title or interest to said real property and to deliver possession of said real property covered thereby to Holcombs. It is agreed that upon such reassignment by the Alber Group, Holcombs hereby agree that the Alber Group is thereafter released from any further liability whatsoever under this agreement and Holcombs agree to hold the Alber Group harmless from any and all obligations under the agreement of July 26, 1958 as amended. When there shall be less than one-half of the amount of principal set forth in Paragraph B unpaid, then the only remedy of Holcombs for nonpayment of any installment shall be as set forth in (1) of this paragraph 0 above.” Plaintiff’s complaint alleges that at some unspecified date she acquired the Holcombs’ rights under this agreement from Ralph and Mary Lash to whom the Holcombs had previously assigned their interest therein. It is further alleged that no part of the sum of $41,092.97 had been paid except the sum of $2,500, leaving unpaid the principal sum of $39,837.97 together with interest from July 1, 1962. Plaintiff then alleges that on November 18, 1963, she gave respondents notice of her “election” to declare the entire amount due and owing, and "when respondents failed to pay, the instant action was instituted to recover said sum.