Davis v. Myre

BROWN (R. M.), J.* Appellants filed a complaint in the Municipal Court of the Los Angeles Judicial District in the San Fernando Branch which was entitled “Complaint for Deficiency (Security Valueless) ” and prayed judgment for $2,617.33. In due course, after a demurrer was filed the municipal court ordered the case transferred to the Superior [617]Court of Orange County. There, a motion was filed to consolidate the case at bar with case No. 99331, another action pending between the same parties; it was denied. A motion to retransfer the case back to the Municipal Court of the Los Angeles Judicial District was also denied and the respondents filed an answer and a motion for summary judgment which was subsequently granted, from which judgment the appellants appeal.

The action was based upon a note for $2,900 secured by a deed of trust dated May 17, 1959, and recorded June 23, 1959. The complaint alleged that said note and trust deed executed by the respondents had been given to Victor Volden Co., Buena Park, Inc., and assigned by the payee to the appellants on June 14, 1959, said assignment being recorded on June 23, 1959. It was also alleged that at the time the note was executed, record title to the real property covered by the deed of trust was in the names of Ray A. Burke and Alice B. Burke; that said Burkes had prior thereto executed a note and first deed of trust in favor of the Bank of America for $13,825 which was an encumbrance prior in time and superior to the subject deed of trust; that this prior deed of trust was foreclosed upon by a bank; that the security was completely exhausted on February 16, 1962, by said foreclosure sale; that said real estate was sold for an amount which was alleged by appellants to be the fair cash market value for the property at that time; and that the interest of the appellants acquired in the second deed of trust is completely exhausted and valueless.

After an examination of the various documents and exhibits in connection with the complaint and the affidavits involving the summary judgment, it appears that the original vendors (the Burkes) made a deed to Victor Volden Co. on May 18, 1959, which was recorded June 1, 1959, in Book 4738, page 467, of the Orange County Official Records, being document No. 86549; that on May 17, 1959, Volden executed a deed to respondents which was recorded June 23, 1959, in Book 4769, page 325, being document No. 99823; that a note and deed of trust were made to Volden dated May 17, 1959, signed by respondents, and recorded June 23, 1959, in Book 4769, page 326, document No. 99824; and that on June 14, 1959, the note and deed of trust were assigned to appellants, said assignment being recorded on June 23, 1959, in Book 4769, page 327, document No. 99825. All the documents were recorded at the request of Inland Title Co. which was hand