Farris v. Pacific States Auxiliary Corp.

SEAWELL, J. Plaintiff appeals from a judgment for defendants entered upon a directed verdict. Defendants heretofore moved to dismiss the appeal or affirm judgment before filing of their respondents’ brief. We denied the motion and granted said respondents time to file their brief. (Farris v. Pacific States Auxiliary Corp., 1 Cal. (2d) 289 [34 Pac. (2d) 489].) Upon an examination of the briefs and transcript we are convinced that the judgment must be affirmed.

Plaintiff alleged that on September 30, 1930, defendants wrongfully ousted him from possession of an apartment house of which he was the owner, entitled to possession, and in possession. He further alleged that the property withheld produced monthly rentals of $1800, wherefore he had been damaged in the sum of $9,000 for the period of five months between the alleged ouster and the commencement of suit, [105]and that he would continue to be damaged at the rate of $1800 a month until restored to possession. He prayed for possession of the apartment house and its furnishings and for damages as above set forth.

Plaintiff learned of the apartment house property, situate in Alameda County and containing thirty-nine furnished apartments, on August 27 or 28, 1930. On August 30th he agreed to exchange encumbered real property in Riverside County owned by him for said apartment house. On September 2, 1930, Harriet L. Collins, owner of the apartment house, and her husband delivered to plaintiff a deed to the apartment house and an assignment of “all right, title and interest, if any”, in the furnishings and moneys due. The real property was subject to a recorded deed of trust lien executed by Mrs. Collins and her husband on February 2; 1929, to secure an indebtedness of $69,600, wherein defendant Pacific States Savings and Loan Company was beneficiary and defendant Pacific States Auxiliary Corporation, trustee. On June 20, 1930, which was prior to the exchange agreement between plaintiff and Mrs. Collins, the Pacific States Savings and Loan Company recorded its notice of breach, and election to declare the entire indebtedness due and cause the property to be sold under the deed of trust. The property was duly sold on October 18, 1930, by the trustee and purchased by defendant loan company. The sale took place prior to trial of the action herein. Therefore, regardless of the question of defendants’ right to possession prior to foreclosure, plaintiff was not entitled to a judgment for possession of the real property. Upon sale under a trust deed the purchaser has an immediate right to possession. (Central Savings Bank v. Lake, 201 Cal. 438, 448 [257 Pac. 521]; Kelsey v. Richardson, 101 Cal. App. 762, 768 [282 Pac. 515]; 25 Cal. Jur. 101.)