West Coast Builders, Inc. v. Pacific States Auxiliary Corp.

PLUMMER, J.

The plaintiff began this action'to enjoin the foreclosure of a certain trust deed securing a note executed by a remote predecessor in title. A demurrer to the second amended complaint was sustained without leave to amend. From the judgment of dismissal entered thereafter, this appeal is prosecuted.

The amended complaint alleges that one Alma C. Tad-lock executed a promissory note to the Pacific States Savings and Loan Company, in the sum of $9,650; that the sum of $9,650 was not paid or delivered to the said Alma C. Tadlock at the time of the execution of the note, but that there was deducted therefrom and withheld by the said Pacific States Savings and Loan Company a sufficient sum to render the note usurious. The note was secured by a trust deed. After the execution of the note and trust deed, Alma C. Tadlock conveyed the property to Isabell Barnett, subject to the trust deed. Isabell Barnett in turn conveyed the property to the appellant, subject to said deed of trust.

It is further alleged that the plaintiff desires to bid at the foreclosure sale to be had of said property, and is entitled to credit for the amount alleged not to have been received by Alma C. Tadlock.

For the purposes of this decision it may be admitted that the note, as to Alma C. Tadlock, was usurious. This, however, does not affect the validity- of the note as to the principal sum to secure which the trust deed was executed.

(Findley

v.

Wyatt,

113 Cal. App. 233 [289 Pac. 80];

Duke

v.

Levy,

208 Cal. 376 [281 Pac. 496];

Rice

v.

Dunlap,

205 Cal. 133 [270 Pac. 196];

Davis

v.

Westphal,

102 Cal. App.

[114]