Mack v. Golino
| Decision Date | 26 January 1950 |
| Citation | 95 Cal.App.2d 731,213 P.2d 760 |
| Parties | MACK et al. v. GOLINO et al. Civ. 16983. |
| Court | California Court of Appeals Court of Appeals |
Hugh E. Macbeth, Hugh E. Macbeth, Jr., Chiyoko Sakamoto, Los Angeles, for appellant.
Myron W. Silverton, Los Angeles, for respondents.
Action to set aside a trustee's sale of real property under the provisions of a trust deed. Judgment was for defendants, and plaintiff appeals.
Appellant contends that the sale was invalid because there was no proper publication of notice of sale; and that the evidence was insufficient to support the finding that the sale was regularly conducted.
The trust deed (which was a second trust deed) was executed on November 4, 1946, by Caroline C. Starr in favor of defendants to secure the payment of a promissory note for $564.58, which note was payable in 90 days after said date. On March 13, 1947, defendants caused a notice of default to be recorded. On June 17, 1947, a notice of trustee's sale was sent by mail to Mrs. Starr, and a notice of the sale was posted on the property. A notice of the sale was published in a newspaper, duly authorized to publish such a notice, an June 20, June 27, and July 4, 1947. Those notices recited that the sale would be held on July 7, 1947, at 10 a.m., at the east entrance of the Hall of Justice in Los Angeles. On said July 7th the defendants authorized the trustee, upon the request of Mrs. Starr, to postpone the sale for two months. A representative of the corporation, which was the trustee, testified that the trustee postponed the sale for two months from said July 7th. It does not appear, however, in what manner the postponement was made. The defendants sent a letter, dated September 15, 1947, to the trustee wherein they asked the trustee to proceed with the sale, and they also stated therein 'I will try to attend the sale if you are able to hold it on Wednesday, September 17th.' The said representative also testified that the sale was held on September 17, 1947; that Mrs. Marie Golino was at the sale; and that, 'There were no bidders, so it was sold to Mrs. Teter [Golino] for the actual indebtedness against the deed of trust.'
On March 12, 1947, a petition for the appointment of a guardian of the estate of Mrs. Starr, an alleged incompetent person, was filed. On August 15, 1947, it was adjudged that she was incompetent, but the guardian appointed on that date did not qualify as such guardian. On October 8, 1947, the present guardian was appointed, and on that date she qualified as guardian. This action by said guardian was filed on November 6, 1947. At the time of the sale herein, the unpaid amount of the first trust deed on said property was $1,166.68. The appraised value of the property on January 12, 1948, according to an appraisal in the guardianship proceeding, was $7,500.
Section 2924 of the Civil Code provides in part that a power of sale of real property, under the provisions of a trust deed, shall not be exercised until the trustee 'shall give notice of sale, stating the time and place thereof, in the manner and for a time not less than that required by law for sales of real property upon execution.' Section 692 of the Code of Civil Procedure provides among other things that before the sale of property on execution or under power contained in any deed of trust, notice of the time and place of sale of real property must be published once a week for a period of at least twenty days before the date of sale, in a newspaper of general circulation printed and published in the city in which the property is situated. As above stated, the notice of sale herein was first published on June 20, 1947, and the notice recited that the sale would be held on July 7, 1947. It appears therefore that the notice was not published 'at least twenty days before date of sale,' but was published seventeen days before the date of sale. That notice was defective in that it was not published for a sufficient length of time prior to July 7th. Under the circumstances in the present case, the defect in the publication of notice did not render the sale void. The sale herein was not made on July 7th, the date fixed in the notice, but the date of sale was postponed on July 7th to September 7, 1947, at the request of Mrs. Starr and by reason of her promise to pay the amount secured by the second trust deed. It was not alleged in the complaint herein that the publication of notice of sale was insufficient. The question...
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Goffney v. Family Savings and Loan Association
...foreclosure statutes (§ 2924 et seq.) and we have found no California case which is more on point than that of Mack v. Golino (1950) 95 Cal.App.2d 731, 213 P.2d 760. In Mack, Division Three of this court construed section 692 of the Code of Civil Procedure (a predecessor section to the curr......
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Goffney v. Family Savings and Loan
...nonjudicial foreclosure statutes ( 2924 et seq.) and we have found no California case which is more on point than that of Mack v. Golino (1950) 95 Cal.App.2d 731. In Mack, Division Three of this court construed section 692 of the Code of Civil Procedure (a predecessor section to the current......
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Main I Ltd. Partnership v. Venture Capital Const. and Development Corp.
...conclusive, they qualify that they are conclusive "in the absence of grounds for equitable relief." See, e.g., Mack v. Golino, 95 Cal.App.2d 731, 735, 213 P.2d 760, 762 (1950). No argument has been made by Main I that the notice was insufficient because of fraud, misrepresentation, or conce......
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Little v. Cfs Service Corp.
...without reasonable notice will be set aside." (Ibid., § 775, p. 691.) v. Roe (1913) 22 Cal.App. 139, 133 P. 507 and Mack v. Golino (1950) 95 Cal.App.2d 731, 213 Cal.Rptr. 760. In our research as to the circumstances in which California courts have determined sales under a deed of trust to b......