Seidell v. Tuxedo Land Co.

HELD, J.,

pro

tem.

This is a proceeding in equity to set aside a sale and deed executed pursuant thereto, purporting to have been made by trustees under power of sale conferred by a trust deed, being the same instrument involved in the case of

Seidell

v.

Tuxedo Land Co.,

216 Cal. 165 [13 Pac. (2d) 686], There the plaintiffs sought to enjoin the sale of the property secured by the trust deed, and relief was denied them. The sale now sought to be set aside herein was then had, and the purchaser thereat was the Stockton Abstract & Title Company. At the conclusion of plaintiffs’ case, the court granted a nonsuit and this appeal by C. V. Seidell alone follows.

On the twenty-fifth day of August, 1925, J. R. Covington and Prances R. Covington, his wife, executed a deed of trust, wherein John Raggio and C. W. Hawks were named as trustees, to secure the payment of an indebtedness in the sum of $9,400 owing by the trustors to one Edward P. Harris, named in the instrument as beneficiary. This deed of trust was recorded in volume 97 of Deeds at page 313, Glenn County Records, on August 25, 1926, exactly one year after its execution. On the twenty-third day of January, 1930, the Covingtons executed to appellants herein a deed conveying to them the lands described in the deed of trust and in this instrument appears the following: “Subject to a deed of trust dated August 25, 1925, and recorded August 25, 1926, in Book 97 of Deeds of Trust at page 313.” On

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July 14, 1926, Harris, the beneficiary above named assigned the deed of trust and the indebtedness thereby secured to the Tuxedo Land Company. After default in payment, a sale, the validity of which appellant questions herein, was had, and on the ninth day of January, 1931, a deed was executed by John Baggio and C. W. Hawks, trustees, to the Stockton Abstract & Title Company. This deed contains recitals, which, if true, establish the validity of the sale, at which the grantee named in the deed became the purchaser. The deed of trust provides that in a deed made by the trustees following a sale on default, the recitals therein: “as to the fact of default in payment, and as to the fact and legal sufficiency of the demand for sale, notice of breach and election to cause said property to be sold, recordation of said notice of breach and election to cause said property to be sold, lapse of said three months thereafter, notice of sale, publication and posting of notice of sale, postponement of sale, and notice thereof and conduct of sale (not in exclusion of unmentioned things) ” shall be effectual, conclusive and final.