Woodland Cooperative Rice Growers v. Smith

ADAMS, P. J. Defendants, appellants before us, executed .and delivered to plaintiff their promissory note for $8,300 on or about May 13, 1946, secured by a second deed of trust covering certain real property in Chester, Plumas County. Thereafter defendants turned over to plaintiff one RD-8 caterpillar tractor with bulldozer attachment, either as further security for the note, or as a renting for plaintiff’s use in preparing ground for the production of rice.

The note not having been paid by defendants, plaintiff brought this action to foreclose the deed of trust. Defendants filed a counterclaim for the use of the tractor and attachments and damage thereto. The trial court rendered a judgment in favor of plaintiff for the amount of the note, with interest, together with attorney’s fees and costs, the total judgment being $9,270.69 plus $37.80 costs, with interest from date of judgment at 7 per cent per annum, and ordered sale of the real property described in the deed of trust. The decree [928]provided that defendants were entitled to an offset in the sum of $3,875 for rental of the tractor and attachment and for damages thereto, “such offset however being entirely contingent upon said defendants satisfying in full the above obligation to plaintiff, and that the plaintiff is entitled to have said deed of trust enforced and foreclosed and the said lands and premises hereinafter described sold in the manner prescribed by the law, and the proceeds arising from such sale applied to and upon the payment of said sums of money due as herein set out.” It also provided “that if after the payment of the fees and disbursements of said commissioner the balance remaining in his hands shall amount to the total of all the items hereinabove in this paragraph set out, then and in that event the said defendants . . . shall be entitled to have credited against said amount said sum of $3,875 and the balance of the above specified amount shall be paid to plaintiff and provided further that should the balance remaining in the hands of said commissioner after the payment of his cost and disbursements shall amount to less than the whole amount due plaintiff as hereinabove specified then the whole thereof shall be paid to said plaintiff by said commissioner; and if there be any surplus after the making of said payments, he shall pay the same to the defendants . . ., and if the proceeds of said sale be insufficient to pay the amount so found due to the plaintiff, with interest, costs and expenses of sale as aforesaid, and it shall [so] appear from said commissioners return and report of said sale, a further hearing in this cause shall be had for the purpose of establishing the amount of the deficiency judgment, if any, to be entered against the defendants . . ., and the court does hereby retain jurisdiction of this matter for that purpose.” Subsequently, on motion under section 663 of the Code of Civil Procedure, the judgment was amended to provide that the sale of the real property was subject to the lien of the holder of the first deed of trust.