Prudential Insurance Co. of America v. Sly

LANGDON, J.

This is an action for unlawful detainer following sale under a deed of trust. Judgment was rendered for plaintiff, and defendant Sly appealed.

In 1925 said defendant and his wife executed a note and deed of trust in the sum of $840,000, covering the Stanford Coui't Apartments, at California and Powell Streets in San Francisco. In 1932, after default in payment of principal, interest and taxes, plaintiff recorded notice of breach, posted and published notice of sale, and held the sale on May 10, 1933. Plaintiff was the only bidder, and purchased the property for $350,000. Thereafter this proceeding in unlawful detainer was commenced.

A number of technical objections to the judgment are raised by defendant, which may be briefly considered. It is first contended that the deed of trust in question does not authorize the usual nonjudicial sale, because it gives authority to the trustee to sell “in accordance with the provisions of the laws of the State of California”, and these laws, it is asserted, provided only for a judicial sale,

[730]

prior to 1931. Such provisions as sections 2924 and 2924a of the Civil Code are said to be mere limitations, and not grants of power. There is no merit in this position. Whether an instrument is a deed of trust or a mortgage depends upon the intention of the parties, gathered from all of its provisions

(First Federal Trust Co.

v.

Sanders,

192 Cal. 194 [219 Pac. 440]), and the terms of the present instrument are characteristically those of a deed of trust. The right to sell at a nonjudicial sale under a deed of trust has long been recognized in this state, and the obvious meaning of the instrument here is that the power of sale is given by it, but must be exercised in conformity with any limitations imposed by the statutes of this state. (See

McDonald

v.

Smoke Creek Livestock Co.,

209 Cal. 231 [286 Pac. 693];