McCabe v. Willard

CONREY, P. J.

Defendants executed to plaintiff’s assignor their note for money loaned and secured the same by a deed of trust of real property in the city of Los Angeles. Following default in payment of the note, the property was sold at trustee’s sale for a sum less than the balance due on the note. This action was brought to recover that balance. From a judgment rendered in favor of the plaintiff, the defendants appeal.

In effect the defense to the action presented was that the sale by the trustee was void, and that, consequently, the plaintiff was not entitled to recover judgment as for a balance due after trustee’s sale. The grounds upon which appellants contend that the sale was void relate to alleged defects in the publication of the notice of sale and in the posting of copies of the notice of sale.

Concerning the publication, the points are that the notice was not published for the period required by law, and that the publication was not shown to have been in a newspaper of general circulation published in the city of Los Angeles or county of Los Angeles. At the trial no point seems to have been made with respect to the qualification of the newspaper for the purposes of such notices. If there was any defect in the proof, it was not called to the attention of the court. If the record does not contain any direct testimony on the subject, the omission was one which might have been supplied if any question had been raised on that

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point. We think that such an objection should not be presented for the first time on appeal, or be considered as a sufficient foundation for reversal of the judgment.

In order to authorize the sale, it was necessary that the notice of sale be posted “for twenty days”, and also be published “once a week for the same period” in a newspaper of general circulation printed and published in the city in which the property was situated. (Civ. Code, sec. 2924; Code Civ. Proc., sec. 692, subd. 3.) The notice in question was published once a week for three successive weeks, namely: On April 26, May 3 and May 10, 1928. The day of sale was to be May 22, 1928, and the sale actually took place at that time. It thus appears that the full period of twenty days elapsed between the first publication of the notice and the day when the sale was made as provided in the notice. This was a sufficient compliance with the requirements of the statute as to period of publication of the notice. We think that the decision in