Mortgage Guarantee Co. v. Smith

Plaintiff sued in unlawful detainer and had judgment for restitution of the premises and for accrued rents. The defendants admit everything essential to plaintiff’s recovery except the validity of its title. They have appealed on the judgment roll alone and hence we have a record consisting of the pleadings, the findings, and the judgment.

Preliminarily the appellants argue that the action is not in unlawful detainer but is one to try title. The question is not a new one. In Nineteenth Realty Co. v. Diggs, 134 Cal. App. 278 , 288 [ 25 Pac. (2d) 522 ], and Hewitt v. Justice’s Court, 131 Cal. App. 439 , 443 [ 21 Pac. (2d) 641 ], we held that in actions brought under section 1161a of the Code of Civil Procedure the question of title must be tried when controverted as a necessary element of the remedy of unlawful detainer. Here the respondent is suing under the authority of the third subdivision of the section—“Where the property has been duly sold . . . under a power, of sale contained in a deed of trust ... appellants answered attacking the validity of the sale; hence the case comes squarely within the rule cited.

Appellants first attack the sale because it was consummated in Los Angeles County, whereas the property was

The appellants next argue that respondent’s title is invalid because no conveyance in writing was made to the successful bidder at the sale. The record does not support the statement of the fact. The highest bidder was the Metropolitan Life Insurance Company. The property was sold to this company on December 30, 1932. On the following day it sold and assigned all its interest to the respondent. Some time thereafter the trustee executed its deed to the respondent upon the request of the assignor. It is immaterial whether respondent claims under the instrument of December 31st or under the subsequent trustee’s deed; it has acquired all the title which the trustee had to convey. The trial court found that on the day stated the property was sold to the highest bidder. If the sale was not accompanied by an instrument in writing the appellants should have given us a record showing that. If we are to understand appellants’ argument to be that the successful bidder may not assign his

Appellants argue that the trial court committed error in failing to find upon certain issues raised as special defenses pleaded in their answer. In each instance the burden of proof was on the appellants and error cannot be presumed from the mere statement of it in the absence of a record showing that some evidence was offered. Since the findings made support the judgment we must assume upon this record that if findings had been made upon these issues they would have been adverse to the appellants. (24 Cal. Jur., pp. 944 et seq.)

To the suggestion in appellants’ brief that the sale was unfair and a fraud upon them it is sufficient answer that they have not shown either.

Appellants interposed a demurrer to the complaint, both general and special. The general grounds have heretofore been considered; the special grounds need not be stated. When a defendant does not stand on his demurrer, but elects to answer and go to trial on the merits, the overruling of his demurrer will not support a reversal of the judgment unless the defendant shows he was prejudiced by the order. (2 Cal. Jur., pp. 1012 et seq.; Nittler v. Continental Cas. Co., 94 Cal. App. 498 , 506 [ 271 Pac. 555 , 272 Pac. 309 ]; Harris v. Seidell, 1 Cal. App. (2d) 410 , 414 [ 36 Pac. (2d) 1104 ].)

The judgment is affirmed.

Sturtevant, J., and Spence, J., concurred.

A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 30, 1935.