Reader v. Drapeau

STURTEVANT, J. This is an appeal from an order postponing foreclosure sale of real property under a trust deed by Louis C. Drapeau, building and loan commissioner, and as such receiver of California Mutual Building and Loan Association, the beneficiary under a deed of trust executed by Henry J. Reader and Eva L. Reader, his wife. The appellant contends that the evidence did not support the order. The question at once arises as to what the issues were. The trustors filed a petition as follows:

“The petition of Henry J. Reader and Eva L. Reader, his wife, respectfully shows:

“I.

“That your petitioners are interested parties in the above entitled matter, and file this petition pursuant to the provisions of the Mortgage and Trust Deed Moratorium of 1937.

[311]“II.

“That on or about May 15, 1936, your petitioners filed herein their petition for an order postponing the foreclosure sale of real property, which petition is hereby referred to and made a part hereof, as if the same were herein fully set forth.

“III.

“That pursuant to the petition herein above referred to, the above entitled Court duly made its order herein on the 5th day of September, 1936, postponing the foreclosure sale of the real property described in the petition originally on file herein, until February 1st, 1937. That thereafter, after proceedings duly had herein, the above entitled Court duly made its order on the 5th day of February, 1937, continuing its order of September 5, 1936, which order was presented and signed on the 17th day of September, 1936, in full force and effect in all respects up to and including the 1st day of July, 1937. That said orders, and each of them, are hereby referred to and incorporated as a part hereof, as if the same were herein fully set forth.

“IV.

“That your petitioners have duly complied with all of the terms provided in the said orders and each of them by your petitioners to be met, and are not in default in any of the terms of the said orders postponing the foreclosure sale of your petitioners’ real property.

“V.

“That the apartment house industry is improving, and that your petitioners are informed and believe and therefore allege that as business in general improves, the rents for apartments will increase and enable your petitioners to either refinance the property or to meet payments satisfactory to the respondent, if the foreclosure sale of the real property is postponed until July 1, 1939.