Oller v. Sonoma County Land Title Co.

• Decision Date: 08 December 1955
• Citation: 290 P.2d 880,137 Cal.App.2d 633
• Court: California Court of Appeals Court of Appeals
• Parties: C. R. OLLER and Aileen Oller, his wife, Plaintiffs and Appellants, v. SONOMA COUNTY LAND TITLE COMPANY, a corporation, Angelo Pieroni, a widower, John Chalmers and Edna Chalmers, his wife, Defendants and Respondents. Civ. 8626.

Page 880

290 P.2d 880

137 Cal.App.2d 633

C. R. OLLER and Aileen Oller, his wife, Plaintiffs and Appellants, v. SONOMA COUNTY LAND TITLE COMPANY, a corporation, Angelo Pieroni, a widower, John Chalmers and Edna Chalmers, his wife, Defendants and Respondents.

Civ. 8626.

District Court of Appeal, Third District, California.

Dec. 8, 1955.

George E. Dilley, Santa Rosa, for appellants.

Edward T. Koford, Santa Rosa, for respondent John Chalmers.

Barrett & McConnell, Santa Rosa, for respondent Sonoma County Land Title Co.

PEEK, Justice.

Plaintiffs instituted this action to set aside a sale under a deed of trust. By the terms of the instrument, plaintiffs as trustors transferred to defendant Sonoma County Land Title Company, as trustee, certain land in Sonoma County to secure money loaned to plaintiffs by defendant Pieroni, the beneficiary. The defendant John Chalmers was the purchaser at the sale. Defendant Edna Chalmers filed a disclaimer and the defendant Pieroni was not served with process. From a judgment in favor of defendants the plaintiffs now appeal, contending that the foreclosure proceedings were improper; that the trustee was guilty of bad faith; and that the property was sold for a grossly inadequate price. We conclude that none of such contentions can be sustained.

Plaintiffs first attack the foreclosure proceedings under the deed of trust, arguing that they were irregular in that the oral announcement of postponement made by an officer of the trustee was made when no one was present and hence was insufficient notice of the time and place of the postponed sale. The record however discloses additional evidence that the defendants Chalmers and one Poulsen were present and heard the announcement, and that the plaintiff C. R. Oller was not present. Here the deed of trust expressly authorized the trustee to postpone the sale by oral proclamation. Thus when the defendants' officer, at the time and place fixed in the original notice of sale and without further publication and posting by oral proclamation, postponed the sale to a definite future date, he was acting validly within the express provisions of the deed of trust. Mack v. Golino, 95 Cal.App.2d 731, 734, 213 P.2d 760. 'No other notice of postponed sale need be given.' Code of Civil Procedure, § 694. Since the rule in this state is so well established, any discussion of the cases from other jurisdictions cited and relied upon by plaintiffs' counsel would appear unnecessary.

Plaintiffs' second contention is that the defendant trustee was guilty of bad faith in refusing plaintiffs' request for a continuance of the sale. From the record it appears that such request was predicated upon the assurance of plaintiff C. R. Oller that he would have sufficient money within 'a couple of days' to pay the amount of the indebtedness. Under like circumstances the court, in Galusha v. Meserve, 58 Cal.App. 174, 178, 208 P. 348, 350, held that,

'The fact that at the time of the sale appellant informed the trustee that he was making arrangements to obtain money with which to pay the debt did not obligate the trustee to grant a further postponement of the sale. The creditor having become entitled to enforce payment of the note, the debtor has no valid ground on which to attack the validity of the sale merely because he was not allowed further time in which to pay his debt.'

The record in the present case shows that the notice of default was filed and a copy mailed to plaintiffs by registered mail on March 31, 1952; that notice of sale was published on August 5, 1952; that on September 18, 1952, the sale was continued to September 30, 1952. In other words, six months elapsed from the date of notice of default to the date of...