Hesse v. Railway Federal Savings & Loan Ass'n

SCHOTTKY, J., pro tem. — This is an appeal from a judgment of dismissal following an order by the trial court sustaining respondents’ demurrer to appellant’s fifth amended eomplaint without leave to amend.

[112]The complaint alleged that on September 18, 1936, the Bet' ter Housing Association, a corporation, borrowed $3100 from respondent Railway Federal Savings and Loan Association, predecessor in interest of respondent California Federal Savings and Loan Association, upon a promissory note secured by a deed of trust upon certain real property, a copy of which said deed of trust being attached to the complaint as Exhibit “A”; that on September 18, 1936, the said Better Housing Association borrowed $500 from W. A. Morey upon a promissory note secured by a second deed of trust upon the same real property; that “since a date prior to August 30, 1937, ’ ’ appellant has been the owner of said note and deed of trust as the assignee of said W. A. Morey; that at the time appellant purchased said note and second deed of trust he did so relying on the terms and conditions of said first deed of trust, and that said real property was at all times of a value in excess of said $3100 and said $500. The complaint further alleges that on May 3, 1937, respondent California Federal Savings and Loan Association gave notice of default claiming there was ‘ ‘ default in the payment of advances made under the terms of said deed of trust in the principal amount of $731.41, together with interest thereon as of April 1, 1937, in the sum of $22.99, totaling $754.40”; that said claim was “arbitrarily and wantonly made in that said alleged ‘advances’ were not allowed nor justified under said deed of trust nor permitted under its terms ’ ’; that on August 4, 1937, the trustee under said first deed of trust published and posted a notice of sale of said real property, and that on August 30, 1937, said trustee offered said real property for sale and ‘ ‘ did require and demand as a purchase price of said property the entire principal sum of $3100.00,” together with $124 interest, and $754.40, with costs and charges. The property was thereupon sold to respondent Railway Federal Savings and Loan Association for $4187.50. It is further alleged in the complaint that “save for the said wanton, arbitrary, fraudulent and unjust demands of said trustee, plaintiff would have paid the just demands of said beneficiary in entirety in subrogation to the rights of said beneficiary in said $3100.00 trust deed in accordance with section 2904 of the Civil Code, and thereby saved to himself his security”; that by reason of said sale he has been deprived of his security in said property; that he is unable to collect upon said note by