Bank of Alameda County v. Hering

SPENCE, J.

Plaintiff sought to recover a deficiency judgment after a sale of land under a deed of trust. Prom a judgment in favor of plaintiff, defendant appeals.

[572]

In 1922, defendant Hering executed in favor of plaintiff a note in the sum of $30,000 and a deed of trust to secure the same. In 1924, defendant Bottimore purchased the land described in the deed of trust from defendant Hering and by the written agreement of purchase signed by defendant Bottimore the sale was agreed to “at the price of Forty-two Thousand and no/100 Dollars, lawful money of the United States, on the following terms: $12,000.00 cash; balance by assumption of $30,000.00 bank loan at 7% interest”. When defendant Bottimore put up the balance of the cash payment to consummate the transaction he received from the title company a receipt showing that the property was subject to the “Trust deed !$30,000.00 in favor'of The Bank of Alameda County”. Defendant Bottimore went into possession of the land, paid interest on the indebtedness for several years, but subsequently became in default with respect to payment of both principal and interest. The land was sold under the deed of trust for $24,000 and this action was brought to recover the unpaid balance. Upon the trial of the cause defendants offered no evidence and judgment was entered in favor of plaintiff and against defendants Hering and Bottimore.

Appellant contends that the complaint does not state a cause of action against him, but in our opinion this contention is without merit. It. was alleged in the complaint that appellant entered into a written contract for the purchase of the land and “that in and by said contract the said W. W. Bottimore assumed and agreed to pay the obligations created by the aforesaid promissory note and the aforesaid deed of trust”. It is claimed that the foregoing allegation amounts to a conclusion of law rather than an allegation of fact, but it is well settled that a written instrument may be pleaded according to its legal effect or

in haec verba.

(21 Cal. Jur. 45.) The further claim is made that there was no allegation that there was any amount “due, owing and unpaid from and by appellant”, but the allegations of the complaint clearly show that liability was imposed upon appellant by the assumption clause of the agreement and the allegations with respect to nonpayment are full and complete.