Liebenguth v. Priester

McCOMB, J. From a judgment in favor of plaintiff, after trial before a jury, in an action to recover the balance due upon a promissory note after applying to the principal amount of the note the sum obtained at a trustee’s sale held pursuant to the power of sale contained in a trust deed executed as security for the note, defendant appeals.

The essential facts are these:

May 15, 1936, defendant executed and delivered to plaintiff’s assignor a promissory note in the principal sum of $95,-850 which contained a final maturity date of May 15, 1941. This note was secured by a trust deed on certain parcels of land located in Los Angeles County. The note was not paid according to its terms, and on January 2, 1943, the trustee named in the trust deed sold the property described in the trust deed pursuant to the power of sale contained therein for the sum of $50,000. This present suit is for the balance due on the promissory note.

Defendant relies for reversal of the judgment on three propositions which will be stated and answered hereunder seriatim.

First: Under the Provisions of section 580d of the Code of Civil Procedure the trial court erred in entering a judgment upon the verdict in favor of plaintiff.

This proposition is untenable. Section 580d of the Code of Civil Procedure reads thus:

“No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage upon real property hereafter executed in any case in which the real property has been sold by the mortgagee or trustee under power of sale contained in such a mortgage or deed of trust.” (Italics added.)

This section became effective on March 6, 1941, nearly five years after the note here in question was executed. It is clear that by the use of the words “hereafter executed” in the section, such section does not apply to the note here involved.

Second: There was not sufficient evidence to sustain the trial court’s findings that at the time of the trustee’s sale there was due plaintiff .the following sums, to wit: (a) principal, $93,531.52; (b) counsel, and other fees, $5,665.61; (c) taxes, $3,332.53; (d) interest, $1,449.58; and (e) posting, publishing, etc., $32.

This proposition is also untenable. Mr. Bltinge, a witness [345]