Alameda County Home Investment Co. v. Whitaker

THE COURT.

This is an appeal from a judgment for the plaintiff in an action to recover possession from the defendants of certain real property pursuant to the provisions of section 1161a of the Code of Civil Procedure.

The defendant W. A. Whitaker was the owner of an apartment house called The Whitaker Arms in Berkeley and of a dwelling-house adjacent thereto, also divided into apartments, both of which were rented by said defendant for income purposes. On July 12, 1927, Whitaker executed a first deed of trust on the apartment house to American Securities Company, as trustee, to secure repayment of a loan of $60,000 made by Fidelity Mortgage Securities of California. This loan was due in one year. It was subsequently transferred to Fidelity Guaranty Building and Loan Association. At the same time Whitaker executed a deed of trust of the dwelling-house to secure a loan of $7,000, on similar terms, from Fidelity Guaranty Building and Loan

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Association. On October 1, 1928, Whitaker executed a second deed of trust on the apartment house to American Trust Company, as trustee, to.secure a note to the plaintiff for $10,924.93, due in one year and providing for monthly payments of $200 on the principal. All of the notes and deeds of trust contained the usual acceleration clauses. The deeds of trust provided that the defendant Whitaker should pay all fire insurance premiums, taxes, assessments, etc.

It was alleged in the complaint that on January 3, 1930, the whole of the principal of said note for $10,924.93 remained due and payable and unpaid with accrued interest and that certain taxes remained unpaid; that on said last-named date the plaintiff caused a notice of breach and election to sell to be executed and recorded; that the trustee under said second deed of trust pursuant to said recorded notice duly published and posted notice of sale and sold at public auction said Whitaker Arms apartment property subject to said first deed of trust to the plaintiff who was the highest bidder for cash at said sale; that on June 10, 1930, said trustee executed to the plaintiff its trustee's deed of said real property and that by virtue of said sale the plaintiff is the owner, subject only to said first deed of trust, and entitled to the possession of said property. The plaintiff also based its right of recovery of possession upon a chattel mortgage and assignment of rentals, made a part of the complaint, which was executed by the defendant Whitaker as further security for all three of said loans in ’ consideration of the plaintiff’s extending the maturity date of said second deed of trust. The complaint contained allegations of the defendant Whitaker’s breach of the provisions of said second deed of trust and of said chattel mortgage and assignment of rentals, and of other matters upon which it also sought and obtained the appointment of a receiver. The defendants’ answer denied generally the allegations of the complaint. The trial court found for the plaintiff on all the issues and rendered judgment accordingly.