Security-First National Bank v. De La Cuesta

SHINN, J.,

pro tem.

Appeal from a judgment for the recovery of possession of real property by the purchaser of the same at trustee’s sale under a trust deed.

Plaintiff’s demurrer on general and special grounds to defendant’s answer was sustained without leave to amend. Leave to amend was not requested and judgment was thereupon entered in favor of plaintiff for possession of the real property. The sufficiency of the various allegations of the answer will be considered in connection with the several points made by appellant to which they relate, all of which are urged in support of the contention that the sale under the trust deed was void.

The notice of sale stated that the sale would be made “at public auction to the highest bidder, for cash, (payable in United States Gold at time of Sale) ”, We are urged to hold that this was a void notice and therefore no notice because at the time of sale, February 16, 1934, by act of Congress of March 9, 1933, and by order of the President of August 28, 1933, and of the secretary of the treasury of December 28, 1933, it was unlawful for any person to hold or retain any interest in gold, gold bullion, or gold certificates, all of which were required to be delivered to the treasurer of

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the United States. According to the contention of appellant, the invalidity of the notice resulted from the fact that by its terms it precluded bids at the sale payable in any'form of money other than gold coin. Thus, as it is argued, terms of sale were imposed which could not lawfully be met and therefore the notice, instead of inviting bids, in effect forbade them.

The notice was given, and the legal time had expired for which the notice was to run before the sale, prior to the effective date of the executive orders by which the retention and use of gold coin were prohibited. The notice, then, was legal at the time it was given and we are of the opinion that it was not invalidated by any legislation or executive orders which took effect at a later date. On the contrary, on June 5, 1933, Congress passed a joint resolution (48 U. S. Stats, at Large, chap. 48, p. 112), which provided in part as follows: “Every obligation, heretofore or hereafter incurred, whether or not any such provision” (for payment in gold coin) “is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts.” The effect of this act of Congress was to strike from defendant’s contract the specification of gold coin as the medium of payment of the debt.