Williams v. Koenig

PRESTON, J.

On January 22, 1932, plaintiff became the owner of certain real property encumbered by a deed of trust given to secure a five-year promissory note executed October 14, 1927, in the principal sum of $30,000. No pay

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ment was made of the installment of taxes due on the property in December, 1931, and interest payments for that month and for January, 1932, were also in arrears. Defendants therefore invoked the acceleration clause of the note to declare the entire indebtedness due and payable. Thereafter, and on January 28, 1932, notice of default was filed for record. After further proceedings’ duly had, and on May 25, 1932, the trustees named in the deed of trust, defendants Koenig and Kroll, sold the property at public auction to the beneficiary, defendant Berger, for the sum of $25,000. Almost immediately, to wit, on June 10, 1932, plaintiff brought this action to set aside said sale as illegal because of errors in the notice of default and other technical defects hereinafter discussed. Defendants answered; defendant Berger also cross-complained to quiet his title to the property. The cause was heard by the court without a jury. Thereafter findings of fact were rendered upholding the legality of the sale, followed by judgment in favor of defendants. Plaintiff then made a motion under sections 663 and 663a of the Code of Civil Procedure to vacate said judgment and to enter judgment in his favor. This motion the court denied and ordered correction of a clerical misprision in the findings in order that they might properly show recordation of the deed of trust in liber 1691 of official records rather than erroneously imply recordation thereof in liber 1095. Plaintiff did not appeal from the judgment, but has appealed from said special order made after final judgment.

The error above mentioned crept into the findings in the following manner: Defendants’ answer referred to recordation of the deed of trust in liber 1095, instead of liber 1691. The deed of trust was in evidence, bearing correct indorsement of recordation in liber 1691, and the notice of default also made proper reference to liber 1691. However, the mistake in the answer was not called to the court’s attention and, under a general finding that certain allegations of said pleading were true, the discrepancy became impliedly incorporated in the findings. Upon the hearing of appellant’s aforesaid motion, the court concluded that the error was purely clerical and, as above stated, ordered the findings corrected. Appellant claims that although, as to the answer, it was perhaps a clerical error of the parties