Bertschman v. Covell

RICHARDS, J.

The plaintiff prosecutes this appeal from a judgment in the defendants’ favor after the sustaining of a demurrer to her amended complaint, the plaintiff declining to further amend. The plaintiff was the holder of a mortgage upon certain real property in Stanislaus County, owned by one Blanche B. Morton, who prior to the making of said mortgage had made, executed, and delivered to the defendant Western American Realty Company, as trustee for the defendant Anglo-California Trust Company, a trust deed to secure the payment of a promissory note to the latter for the sum of one hundred thousand dollars, and which trust deed had been duly recorded prior to the execution of the plaintiff’s mortgage. Blanche B. Morton having defaulted in her payments upon the aforesaid note the trustee proceeded to sell the property covered by both these encumbrances at trustee’s sale. It is not disputed that notices of default and of the election to sell under the terms of the deed of trust were duly made, given and recorded as required by the terms thereof, nor is it disputed that the notice of sale was duly and regularly given by the trustee for the prescribed period, nor is there anything in the record to show that the plaintiff was not made fully aware of the foregoing facts and of the time and place of said sale prior to the holding thereof. The record disclosed that Blanche B. Morton subsequent to the creation of said encumbrances had leased the property covered thereby to one W. W. Cox, who had engaged in farming operations thereon and was so engaged at the time of the giving of the trustee’s notice of default and election to sell the property under said trust deed. Thereafter and before said sale Cox purchased and became the owner of said note and of the deed of trust securing the same and was the owner thereof at the time of such sale. On the date of the sale and at the place thereof one R. G. Hudson, a member of the law firm of Young & Hudson, who were attorneys for the trustee, appeared and assuming that he had power so to do, proceeded to conduct said sale and to continue the hold

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ing thereof to a later date, upon which he proceeded to hold said sale, offering the property for sale in a single parcel and selling the same to the defendant George F. Covell who bid fifty dollars more therefor than the amount of one hundred thousand dollars due upon said note with interest and of the added cost of the sale. The property thus being sold to Covell, he recognized the lease of Cox and permitted him to retain possession and to summer-fallow and harvest the crop. Blanche B. Morton, the maker of said note and its security, has never, so far as the record discloses, objected to said sale on account of any irregularities occurring therein, and, while made a defendant in this action, has not appealed.