Sorensen v. Hall

CURTIS, J.

This is an action in ejectment. The plaintiff claims title to the real property involved through a trust deed executed by defendant Hall and wife; a trustee’s deed under proceedings foreclosing said trust deed; and a deed from the purchaser at the foreclosure sale. The defendants are Hall, the original owner of said real property, and Hambly, who derived whatever interest he had in said real property through the defendant Hall. At the trial the plaintiff introduced the three deeds mentioned above and rested. Whereupon defendants moved for a nonsuit, which was denied. The only evidence offered by the defendants to dispute plaintiff’s title as shown by the three deeds above mentioned was evidence which tended to refute the recitals in said trustee’s deed. This evidence was objected to by the plaintiff, and the objections were sustained by the court. In their answer, defendants denied certain of the allegations of the complaint. They set up

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no equitable defenses to plaintiff’s cause of action. The trial court gave judgment in plaintiff’s favor, from which judgment the defendants have appealed.

The main contention of the defendants is that the recitals in the trustee’s deed are not evidence of the facts recited therein, and that it was incumbent upon the plaintiff to offer independent proof sufficient in evidentiary A'alue to establish the facts set forth in the recitals. For instance, the defendants contend that there was no evidence before the court showing that the trustee prior to the sale gave any notice of such sale either by posting or publishing notice of sale as required by law and the provisions of said deed of trust, although the recitals in the trustee’s deed show that notice both by posting and by publication was given as required. The same contention is made in regard to the substitution of a trustee under the trust deed. The trust deed under which the plaintiff claims title to said real property provides: “Any deed,, conveyance, reconveyance or other instrument herein provided for or permitted, may recite any "facts relative to the execution of this trust, or relative to any payment made to the Trustee or Beneficiary, or upon which the legality, effectiveness or regularity of such instrument depends, and such recitals shall be conclusive proof of the truth of the facts recited.” Regarding a provision in a trust deed similar to that in the trust deed now before us, this court has ruled:. “This provision would not, perhaps, preclude the inquiry in an equitable proceeding into the fairness of the sale, or into other matters which on equitable principles might entitle the party injured to relief; but it must be taken as conclusive in a case involving only the legal title, such as the case at bar.”