Riverside Rancho Corp. v. Cowan

McCOMB, J. Respondents move to dismiss this appeal on the ground that (1) the questions involved have become moot, and (2) appellant has accepted benefits under the judgment, has acquiesced in it, and is therefore estopped to appeal therefrom.

Chronology Here Involved

(1) On August 12, 1946, respondents (plaintiffs herein) filed an action (No. 518224) against appellant (defendant [566]herein) and the Bank of America Trust and Savings Association to enjoin the sale of certain property, pursuant to the provisions of a trust deed.

(2) On June 20, 1947, a judgment was entered in action No. 518224, in which it was decreed: “It is further ordered, adjudged and decreed that the principal amount of said note for $68,443.99 shall be and is hereby reduced to the sum of $24,190.59; and said reduced principal amount shall be payable according to the terms of said note, in three equal annual installments of $8,063.53 each, on the 5th day of each twelfth month, the first installment having been due on the 5th day of January, 1947. And said defendant, her agents and employees, are hereby enjoined from enforcing the payment of said note for any sum in excess of said reduced amount of $24,190.59, and interest thereon.”

(3) When respondents failed to pay the first installment of $8,063.53, as ordered in the judgment, a notice of default was recorded by the trustee.

(4) On August 22, 1947, the parties entered into a stipulation reading as follows:

“It is hereby stipulated by and between the parties hereto, through their respective counsel, that the plaintiffs herein shall pay to the defendant, E. Stewart Cowan, forthwith the following amounts: $8,063.53, being the first installment due on the note secured by second trust deed which is the subject of this action; $1,124.16, being interest due on said note to and including August 22nd, 1947; $571.10 for and on behalf of the trustee’s costs and fees in connection with the foreclosure sale; making a total of $9,758.79.

“It is further stipulated and agreed that in consideration thereof, judgment shall be entered herein in favor of the plaintiffs and against the defendants as follows:

“1. That it be adjudged that the Notice of Default recorded in Riverside County on March 18th, 1947, in Book 828, Page 62 of official records of said County was, and is, ineffective and cancelled, and that a new Notice of Default must be recorded before any legal sale of said property described in said trust deed can be made.