Williams v. Linville

LANGDON, J. This is a petition to postpone sale under a deed of trust in accordance with the provisions of the Mortgage and Trust Deed Moratorium Act of 1935. (Deering’s Gen. Laws, 1935 Supp., p. 1336.)

The trust deed secured a note in the sum of $10,500 on ranch land in San Bernardino County. It was executed in 1930, and in 1932, when petitioners acquired the property, they assumed payment of the note. Thereafter they defaulted in payments of principal, interest and taxes, and notice was filed July 16, 1934, of an intended sale in July, 1935. The present petition was filed July 17, 1935, alleging inability of petitioners to meet their obligations under the note and deed of trust and seeking postponement of the sale. The answer alleged that petitioners had adequate personal funds, that they had failed to give proper care to the property and that if the sale were postponed, the orange grove would die and a good part of the security would be thus lost. The court found that there was past due the sum of $8,500 principal, $1,000 interest, and that delinquent taxes amounted to $127.12; that the orange grove, as kept by petitioners, produced practically nothing, but that with reasonably good care and attention it should produce about 3,000 boxes per year. The court further found that petitioners received salaries of $585 per month. Accordingly, the court on October 5, 1935, decreed that the sale should be postponed until January 1, 1937; that defendant Linville, beneficiary under the deed of trust, should have possession of the property until such time, for the purpose of placing it in good condition; that petitioners should pay to said defendant until such time the monthly sum of $125 commencing October 1, 1935; that petitioners should pay the delinquent taxes and other taxes coming due; that defendant Linville should rent the house, if possible, and develop and market the crops, using the proceeds, when necessary, for upkeep and care of the premises, and applying any surplus to the obligations under the note; that said defendant should account to the court for all collections and expenditures. It was finally provided that if petitioners defaulted in any of these matters, upon a [258]showing of such default to the court, it would vacate the order postponing the sale.

Petitioners gave notice of appeal from this decree on October 19, 1935. Thereafter, in accordance with the provisions of the decree, defendants moved to vacate the same on the ground that petitioners had failed to comply with its terms. A hearing was had, and on November 1, 1935, the court made its order vacating the decree of postponement. Petitioners then perfected an appeal from this order. By stipulation, both appeals are taken on the same record. After the filing of petitioners’ opening brief, defendants and respondents made a motion to dismiss the appeal or affirm the orders of the lower court. After the hearing on the motion, the cause was ordered submitted on the merits.