Ybarra v. Solarz

DORAN J. This is an appeal from a judgment for certain defendants entered after demurrer to plaintiff’s complaint was sustained without leave to amend. The action is one to cancel a trust deed and promissory note and to restrain foreclosure proceedings against certain real property. The complaint contains two causes of action, the first setting forth facts as to the execution of the trust deed and note and the second setting forth facts as to the filing of, or intention to file a declaration of default under the trust deed and the intention to sell the real property covered thereby.

It is alleged in the complaint that on October 2, 1937, the plaintiff entered into a written contract with the defendants Herman Solarz and Bessie Solarz, in which, among other things, said defendants agreed to sell to the plaintiff a certain parcel of real property for the sum of $3,700, payable on the following terms: $550 upon the execution of the agreement; $85 a month on the first day of each and every month, beginning on the first day of November, 1937, with interest at 6% per annum, continuing for three monthly payments; and thereafter principal and interest was to be payable in installments of $35 or more on the first day of each month, continuing until the purchase price was paid in full. The contract further provided that the sellers reserved the right at any time to give a deed, and take back a trust deed for the unpaid balance, payable in accordance with the terms of this contract, as alleged in the complaint. It is also alleged that [344]the plaintiff made all payments required of him up until March 4, 1939; but that on that date the said defendants induced the plaintiff to execute a trust deed to replace the vendor’s agreement in question, in which trust deed the said defendants were designated as beneficiaries thereof; and that said trust deed provided that the plaintiff should pay to the defendants the unpaid balance then due on said vendor’s agreement, being the sum of $2,782.09, payable in installments of principal and interest of $35 or more on the 15th day of each and every month, beginning on the 15th day of March, 1939, and continuing up to and including the 15th day of February, 1942, the balance of principal and interest then remaining unpaid to become due and payable on the 15th day of March, 1942. That concurrently with the execution by the plaintiff of the said trust deed the plaintiff was further induced to execute a promissory note in accordance with the provisions of said trust deed. That on March 15, 1942, the defendants demanded of plaintiff that he pay to the defendants the entire unpaid balance due on said date on the trust deed and promissory note, and informed plaintiff that unless said sum was paid the defendants intended to, and would proceed to declare all sums secured by said trust deed immediately due and payable and file a written notice of default and of election to cause said property to be sold. Plaintiff alleges that he is not now in default in any of the payments that were due as provided under the vendor’s agreement above referred to, and that plaintiff is willing to continue to make the monthly payments provided for in said agreement, or in any trust deed and promissory note in accordance with the terms of said agreement; but that the provisions in the trust deed providing that the balance of the principal and interest remaining unpaid on March 15, 1942, shall all be due and payable on that date, was in violation of the terms of the vendor’s agreement; and that the said trust deed, increasing the obligations of plaintiff as provided in the vendor’s agreement, and adding to the terms thereof and imposing new and onerous terms upon plaintiff, was entered into and executed by plaintiff without any consideration therefor from the said defendants to the plaintiff. The second cause of action, directed against the trustee under the trust deed, is founded upon the same set of facts. Plaintiff prays accordingly for cancellation of the trust deed and note, and