Messenkop v. Duffield

TUTTLE, J.,

pro

tem.

This action was brought to quiet title to a parcel of land in Los Angeles County. The court found for plaintiff upon all issues raised, and judgment was entered accordingly. The appeal is prosecuted from said judgment.

[542]

The grounds relied upon for reversal are somewhat vaguely stated. Neither in the topical index nor in any subheading of appellants’ opening brief is there any clue to the position of appellants upon this appeal. Reading the brief throughout aids little in this inquiry. We

can

gather, however, that appellants seek to attack certain findings of the trial court, and we shall endeavor to dispose of that contention. Practically the entire time of appellants is occupied with the presentation of matters which, under the circumstances, were within the exclusive province of the trial court.

On April 23, 1927, appellant executed her note for $3,600, payable eighteen months from date, together with a trust deed covering the property in dispute, in favor of W. L. Milne. Thereafter Milne delivered to the trustee a written declaration of default and demand for sale. Thereafter, and on March 30, 1928, a notice of breach and election to sell was duly recorded. A sale was had under the terms of said trust deed, upon August 7, 1928, and respondent bid the property in for the sum of $2,000. Thereafter, a trustee’s deed, reciting all these facts, was duly executed to respondent. The trust deed contained the provision that, “The recitals in such deed or deeds of any matters or facts affecting the regularity or validity of said sale shall be conclusive against the persons as to all matters or facts therein recited.”

At the trial plaintiff’s source of title was his deed received pursuant to said sale. The chief contention made by appellant was that she was not in default, and the sale was therefore void. She also attempted to prove that respondent was a purchaser with notice, and had conspired with Milne to deprive her of her property through a fraudulent sale.

The complaint is the ordinary form to quiet title, though plaintiff prays for possession and the recovery of the rental value of the lot during the time that appellant has had possession. The answer denies the foregoing allegations, and sets up four affirmative defenses. The first states that appellant was not in default when the sale under the trust deed was had. The second alleges that the trustee and beneficiary under said deed were guilty of fraud in making a statement of the amount due when the notice of intention to sell under the trust deed was filed. The third charges