Brunzell v. Woodbury

• Decision Date: 10 January 1969
• Docket Number: No. 5601,5601
• Citation: 449 P.2d 158,85 Nev. 29
• Parties: Everett S. M. BRUNZELL, Appellant, v. W. Verne WOODBURY and Andrea Woodbury, his wife, William R. Thornton, a married man, and Doris H. Thornton, a single woman, Respondents.
• Court: Nevada Supreme Court

Page 158

449 P.2d 158

85 Nev. 29

Everett S. M. BRUNZELL, Appellant, v. W. Verne WOODBURY and Andrea Woodbury, his wife, William R.

Thornton, a married man, and Doris H. Thornton, a

single woman, Respondents.

No. 5601.

Supreme Court of Nevada.

Jan. 10, 1969.

[85 Nev. 30] Goldwater, Taber, Hill & Mortimer, and Robert E. Rose, Reno, for appellant.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, for respondents.

OPINION

BATJER, Justice.

This is an appeal from a summary judgment granted in favor of the respondents for a deficiency on a promissory note in the amount of $34,557.26, together with interest at the rate of 7% per annum, and attorney's fees in the amount of $5,000. The appellant seeks to have the judgment of the lower court reversed on the ground that there remain genuine issues of material fact to be presented to a trier of fact and that the respondents are not entitled to judgment as a matter of law.

On March 23, 1966, appellant and respondents entered into an agreement wherein the respondents agreed to sell to the appellant certain land in Reno, Washoe County, Nevada. According to the terms of the agreement the total purchase price was $136,000, of which $95,000 was to be paid on closing of the escrow, and the balance of $41,000 was to be evidenced by a promissory note secured by a deed of trust. It was further agreed that the purchaser's liability under the promissory note would be limited to such deficiency as might exist after foreclosure of the deed of trust and sale of the subject property.

On April 5, 1966, a promissory note and a deed of trust securing the note were executed by the appellant. There is no contention of, nor is there any, ambiguity in either instrument.

On April 5, 1967, the principal and interest due under the terms of the promissory note remained unpaid, and on May 18, 1967, the respondents instituted proceedings to foreclose the deed of trust. On September 13, 1967, the property was sold to Wilhelm Berger, a stranger to the original transaction, for the sum of $11,500. From this amount was deducted $927.95 to pay expenses incurred in connection with the sale, and the remaining $10,572.05 was disbursed to the respondents. On October 16, 1967, the respondents filed suit to obtain a deficiency judgment.

The appellant contends that the price paid by the purchaser at the foreclosure sale was grossly inadequate, resulting in an excessive deficiency. He makes no contention that the foreclosure was made in any manner other than in accordance with the trustee's powers of sale and according to the applicable law, nor does he contend that there was fraud, oppression or unfairness in procedure at the foreclosure sale. The cases of Nevada Land & Mtge. Co. v. Hidden Wells Ranch, Inc., 83 Nev. 501, 435 P.2d 198 (1967), and Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963), and cases cited therein dispose of his contention which we find to be without merit.

In Golden v. Tomiyasu, supra, this court held that a sales price representing 28.5% of the value of the property was not inadequate and went on to adopt the rule laid down in Oller v. Sonoma County Land Title Company, 137 Cal.App.2d 633, 290 P.2d 880 (1955), that: '* * * inadequacy of price, however gross, is not in itself a sufficient ground for setting aside a trustee's sale legally made; there must be in addition proof of some element of fraud, unfairness, or oppression as accounts for and brings about the inadequacy of price.'

In this case, although there is no independent evidence of the value of the property at the date of sale, the sales price of $11,500 was approximately 25% of the debt. There is nothing in the record to indicate this price was inadequate, but this is of no consequences since we find that inadequate price standing alone is insufficient grounds for setting aside the sale.

In McMillan v. United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966), this court held that the mode for determining the value of the security is to exhaust the security by sale, and went on to say: 'In any event, the creditor's opinion of value may not be substituted for the mode of determining that fact.'

Here we will not substitute the opinion of the appellant for the accepted mode for determining the value of the security. In accord: Smith v. General Investments, Inc., 246 Miss. 765, 150 So.2d 862 (1963).

Appellant next...