Bertschman v. Covell

The plaintiff prosecutes this appeal from a judgment in the defendants’ favor after the sustaining of a demurrer to her amended complaint, the plaintiff declining to further amend. The plaintiff was the holder of a mortgage upon certain real property in Stanislaus County, owned by one Blanche B. Morton, who prior to the making of said mortgage had made, executed, and delivered to the defendant Western American Realty Company, as trustee for the defendant Anglo-California Trust Company, a trust deed to secure the payment of a promissory note to the latter for the sum of one hundred thousand dollars, and which trust deed had been duly recorded prior to the execution of the plaintiff’s mortgage. Blanche B. Morton having defaulted in her payments upon the aforesaid note the trustee proceeded to sell the property covered by both these encumbrances at trustee’s sale. It is not disputed that notices of default and of the election to sell under the terms of the deed of trust were duly made, given and recorded as required by the terms thereof, nor is it disputed that the notice of sale was duly and regularly given by the trustee for the prescribed period, nor is there anything in the record to show that the plaintiff was not made fully aware of the foregoing facts and of the time and place of said sale prior to the holding thereof. The record disclosed that Blanche B. Morton subsequent to the creation of said encumbrances had leased the property covered thereby to one W. W. Cox, who had engaged in farming operations thereon and was so engaged at the time of the giving of the trustee’s notice of default and election to sell the property under said trust deed. Thereafter and before said sale Cox purchased and became the owner of said note and of the deed of trust securing the same and was the owner thereof at the time of such sale. On the date of the sale and at the place thereof one R.

The plaintiff makes two main contentions upon this appeal. The first of these is that the trustee’s sale was irregularly conducted because of the fact that B. G. Hudson, who appeared and assumed to act as the agent of the trustee, had no authority so to act, and that in so acting he exercised a discretion in the making of said sale and appeared in the matter of postponing the date thereof which the trustee was alone empowered to exercise, and which it could not lawfully transfer to another. There is no merit in this contention, for while it may be true that Hudson had not prior to said sale been constituted the agent of the trustee by any express or formal authorization to act, he was, as a member of the law firm representing such trustee, at least informally designated as its agent to conduct said sale. The deed of trust expressly provides that the sale thereunder may be conducted by the trustee or its agent, and even if it be conceded that the appointment of Hudson to act as the agent of the trustee in the premises was informal, such informality would be cured by the subsequent ratification of the act of its said agent by the trustee, consisting in a receipt of the money which was the proceeds of said sale and the execution of the deed to the transferee of the purchaser at such sale. (Pacific V. & P. Works v. Smith, 152 Cal. 507 [ 93 Pac. 85 ]; Union Trust & Realty Co. v. Best, 160 Cal. 263 [ 116 Pac. 737 ].)

i The appellant’s other contention is, we think, equally without merit. It is, as alleged in her complaint, that the defendants Cox and Covell, who were present at said sale for the purpose of becoming bidders thereat, had entered

No error appearing in the record, the judgment is affirmed.

Shenk, J"., and Langdon, J., concurred.