Ley v. Babcock

NOURSE, P. J.

Plaintiff sued to collect the deficiency on two promissory notes each in the principal sum of $2,500. Plaintiff had judgment and defendants appeal on a bill of exceptions.

[527]

On March 3, 1926, defendants purchased from plaintiff’s assignor a lot near Long Beach, California, for $10,000, paying $5,000 of the purchase money in cash and giving to the vendors the two promissory notes in suit which were secured by a deed of trust. The defendants failed to pay any portion of the balance due and the two promissory notes with the security therefor were duly assigned to the plaintiff, who caused the real property to be sold under the trust deed. At this sale the property was bid in for the sum of $400. A deed was executed and delivered to the purchaser and the plaintiff then commenced this action to recover the deficiency.

The first point raised on the appeal is that the demurrer to the amended complaint should have been sustained because the allegation that the trustee “after due notice of the time and place of sale given in accordance with the terms and provisions of said deed of trust and in full compliance with the provisions of section 692 of the Code of Civil Procedure . . . did . . . sell”, etc., is a mere conclusion of law. The point is without merit. The action is one for a deficiency judgment on promissory notes in which it would have been sufficient to have alleged that a sale had been had and that but $400 was received. Furthermore the form of pleading is expressly authorized by section 459 of the Code of Civil Procedure, where it is declared that, it is sufficient to plead that the party duly performed all the conditions on his part required by the statute on which he depends.

It is argued that the trustee’s deed was erroneously admitted in evidence because it had not previously been shown that the deed was delivered. The deed showed on its face that it had been duly recorded; evidence had been received proving its due execution and acknowledgment. It was admissible under the express provisions of section 1951 of the Code of Civil Procedure. When the deed was offered in evidence the appellants objected on the ground that it was incompetent, irrelevant and immaterial and that no foundation had been laid. From the briefs it appears that the latter ground only was urged. However, it was received in evidence subject to a motion to strike, and it does not appear that such motion was made or ruled on. For this reason the appellants must be deemed to have waived the point.