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Smith v. Davis

10 Cal. App. 2d 487 Court Second Appellate District, Division One. Decision date 1935-12-05 Docket Civ. No. 10015 English

Delivered by SHINN, J., pro tem.

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p. 487
[Civ. No. 10015.
Second Appellate District, Division One.
December 5, 1935.]
JOSEPH SMITH, as Executor, etc., Respondent, v. RICHARD D. DAVIS et al., Appellants.
George W. Zent and Miller & Ellis for Appellants.
George M. Breslin for Respondent.

An appeal from a judgment in favor of plaintiff for the unpaid balance of a promissory note after sale of real property under a trust deed.

The sole question in this case is w'hether section 580a of the Code of Civil Procedure (Stats. 1933, chap. 642), by which the right to a deficiency judgment after sale of real

p. 488
property under a trust deed is limited to the excess of the entire amount of the indebtedness, due at the time of sale, over the fair market value of the property at the time of sale, applies to a trust deed executed prior to the effective date of the act. The sale here involved took place before the act went into effect.

The application of the section contended for by defendants has been denied in the recent cases of Bennett v. Superior Court, 5 Cal. App. (2d) 13 [ 42 Pac. (2d) 80 ] , California Trust Co. v. Smead Investment Co., 6 Cal. App. (2d) 432 [ 44 Pac. (2d) 624 ], Title Insurance & Trust Co. v. Kinkel, 7 Cal. App. (2d) 623 [ 46 Pac. (2d) 778 ] , and Wilson v. Superior Court, 8 Cal. App. (2d) 14 [ 47 Pac. (2d) 331 ],

The appeal from the judgments is affirmed. The attempted appeals from orders overruling the demurrers of defendants Baker and Davis to the complaint are dismissed.

Houser, P. J., and York, J., concurred.

Statutes and regulations cited