Sosna v. Baranov

CONLEY, J.* One of the defendants, Edward Baranov, appeals from a judgment for $12,263.12, besides interest., attorneys’ fees and costs, in favor of the plaintiff; the principal sum is the balance due on a promissory note executed by Louis M. Barrack, Julia Barrack, and Edward Baranov. The judgment was against all three; the Barracks defaulted and the judgment is final as to them. Edward Baranov alone argues two points for a reversal, claiming that the promissory note in question is secured by a purchase-money second deed of trust and that, by reason thereof, no deficiency judgment may be obtained; he also urges that as an accommo[461]dation comaker of the note he is protected from personal liability by reason of the applicable anti-deficiency legislation.

The essential portion of section 580b of the Code of Civil Procedure, which was in existence at the time the note was executed and at the time of the trial provided: “No deficiency judgment shall lie in any event after any sale of real property for failure of the purchaser to complete his contract of sale, or under a deed of trust, or mortgage, given to secure payment of the balance of the purchase price of real property.”1

If, factually, the note secured by the deed of trust was not given in part payment of the purchase price of the real property, judgment for plaintiff should be affirmed; that is the conclusion which we have reached.

On November 30, 1956, Elizabeth Sosna, the plaintiff’s assignor, sold lots 7, 11 and 12 of Middletown in San Diego to Walter and Marlene Jackson. She was given a note for $5,000 and a trust deed to secure it which encumbered lot 7, a second promissory note for $8,500 secured by a trust deed on lot 11 and a purchase price deed of trust encumbering lot 12; however, lot 12 is not involved in the present litigation, and it will not be mentioned further.

Walter and Marlene Jackson sold lots 7 and 11 on the 11th day of March 1957, to defendants, Louis Barrack and Julia Barrack. At that time, the Barracks agreed with Elizabeth Sosna that if she would reconvey her first trust deeds encumbering lots 7 and 11 and cancel the promissory notes secured by them, the Barracks would concurrently obtain construction loans secured by new first trust deeds on lots 7 and 11, and would use the proceeds for the improvement of lots 7 and 11. It was further agreed that Elizabeth Sosna would at the same time be given new promissory notes in the total sum of $13,500 executed by the Barracks, together with new second trust deeds encumbering lots 7 and 11; these new second trust deeds would be subordinate in lien to new construction loan first deeds of trust on both lots. Elizabeth Sosna kept her agree