Craig v. Buckley

CURTIS, J.

first of these two actions was instituted by the owners of certain real property, which was subject to a deed of trust, to enjoin the sale of said real property, after an alleged default on the part of the plaintiffs in the payment of the promissory note, to secure which said trust deed was given. The second action was commenced by the payee of said promissory note to recover an amount alleged to he due on said promissory note after the sale of said real property under said trust deed, and the credit of the net proceeds of said sale upon said promissory note. 'The two cases were consolidated for trial. They were tried together and one set of findings was made and one judgment was rendered by which all of the issues in the two actions were determined and the rights of the parties adjudicated. The court in the judgment as rendered denied to the plaintiffs in the first action any relief by means of injunction, or otherwise, and in the second action gave judgment for the amount found due on said promissory note after the application to the payment thereof of the net proceeds of the sale of said real property under said trust deed. W. L. Hogan, one of the plaintiffs in the first action, and one of the defendants in the second action, alone appeals. The appeal is taken on the judgment-roll.

Although W. L. Hogan was not a party to said promissory notes or trust deed, the court found that at the time of making said loan he was in fact the owner of said real property; that said loan was made for his use and benefit and that Sidney J. Hirsch, one of the signers of said note, acted as the agent for said defendant, W. L. Hogan, in the making of said loan and in the execution and delivery of said note and deed of trust. The court therefore gave a personal judgment for the amount due and unpaid on said promissory note against the said W. L. Hogan and also against the said Sidney J. Hirsch and Anna Mae Hirsch, his wife. It released from all liability, however, Morton Hirsch,

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who had signed said promissory note with Sidney J. Hirseh and Anna Mae Hirseh, and who personally negotiated the loan of said money from Christopher A. Buckley, Jr., the plaintiff in the second suit.

The first point made by appellant for the reversal of the judgment is that the notice of sale under the trust deed set forth an excessive amount as due and unpaid on said promissory note at the date of said notice. A complete answer to this contention is that said notice of sale is not set forth in any of the pleadings nor is there anything in the judgment-roll to show just what was contained in said notice of sale, or that there was in said notice of sale any overstatement of the amount due.