United Bank & Trust Co. v. Brown

RICHARDS, J.

This is an appeal from a judgment in the defendant’s favor. The complaint in the action was in two counts, each relating to a different cause of action. In the first alleged cause of action the plaintiff sought to recover a balance due upon two promissory notes dated, respectively, January 13, 1920, and April 6, 1920, each of said notes being secured by a deed of trust executed by C. Walter Brown, the maker of said notes and the defendant and respondent herein. On May 7, 1924, notice of default in the payment of said notes and of election to sell the property described in said trust deed was filed pursuant to the terms thereof. Notices of such sale were published and were also posted on August 13, 1924, and the sale of the property was had thereunder on September 10, 1924. It is for the balance alleged to remain due upon said notes after such sale and the application toward the payment of the total amount due upon said notes that the plaintiff counts upon in its first alleged cause of action. The second count or cause of action arises out of a similar transaction, being for a balance due upon two other notes dated, respectively, November 14, 1919, and May 10, 1922, and which were also secured by a deed of trust, the sale under which was conducted at the same time and upon the same notices as those published and posted upon the sale under the first trust deed. The defense which the said defendant urged in his pleadings and upon the trial related to an alleged insufficiency in the notices given of the sale of his property under each of these deeds of trust, and which, as he con

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tended and here contends, rendered the said sales thereunder void and hence this action as to both its counts premature and nonmaintainable. The trial court found in the defendant’s favor upon the defense and gave judgment accordingly against the plaintiff upon both causes of action. The question thus presented upon appeal arises out of the following situation. At the time these promissory notes were given and the trust deeds securing them were executed, respectively, the latter each contained a provision that in case of default in the payment of said promissory notes the beneficiary under said trust deeds “shall record in the office of the recorder in the county wherein said property or some part thereof is situated a notice of such breach and of election to cause said property to be sold to satisfy said obligations. After three months shall have elapsed following said recordation of said notice the trustees, without demand on the parties of the first part shall sell said property in such parcels and at such times and places as they shall deem best to accomplish the objects of these trusts, having first given notice of the time and place of said sale in the manner and for the time not less than that required by law for sales of real property upon execution.” At the time of the execution of said trust deeds containing the foregoing provision the manner provided and required by law for sales of real property upon execution was that embraced in section 692 of the Code of Civil Procedure. By the terms of that section as it then read it was provided that “in case of sales of real property upon execution notice thereof must be given by posting the notice in the form required therein” for twenty days in three public places of the township or city where the property is situated and also where the property is to be sold, and publishing a copy thereof “for the period prescribed in said section.” In the year 1923 [Stats. 1923, p. 754], however, this section of the Code of Civil Procedure was amended by the addition to its former language of the following proviso: “Provided that where real property is to be sold under the provisions of any deed of trust the copy of said notice shall be posted in some conspicuous place on the property to be sold at least twenty days before date of sale.” The sale of the property covered by the two deeds of trust above referred to was made in