Stafford v. Russell
| Decision Date | 15 April 1953 |
| Citation | 117 Cal.App.2d 326,255 P.2d 814 |
| Court | California Court of Appeals Court of Appeals |
| Parties | STAFFORD v. RUSSELL et al. Civ. 19403. |
Guy N. Stafford in propria persona.
Vaughan, Brandlin & Wehrle, J. R. Vaughan and Warren J. Lane, Los Angeles, for respondents Russell, Vaughan and Binns.
Lawrence L. Otis, Gilbert E. Harris, James F. Healey, Jr., and Harold Arman, Los Angeles, for respondent Title Insurance & Trust Co. FOX, Justice.
Defendants' demurrer to plaintiff's tenth amended complaint was sustained without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.
The first count of the complaint is in the conventional form of an action to quiet title to the described property. It is, however, premised upon the detailed factual allegations contained in the other counts. Count one must, therefore, stand or fall with the other counts. Ephraim v. Metropolitan Trust Co., 28 Cal.2d 824, 833, 172 P.2d 501.
In count two it is alleged that on or about November 1, 1945, plaintiff and one Hansberger entered into an oral agreement for the purchase by plaintiff of certain used oil well equipment then in plaintiff's possession at an agreed price of $900, payable in six months, with title reserved in the seller until payment was made. On that same date plaintiff executed and delivered to Hansberger his promissory note for $900, payable in six months, with interest at five percent, together with a deed of trust on the lots described in count one as security for the note.
The deed of trust, attached as an exhibit to the tenth amended complaint, named defendant Title Insurance and Trust Company as trustee, and required, inter alia, that trustor pay all taxes before delinquency and pay all encumbrances, charges and liens which appear to be prior or superior to the trust deed, and further provided that should trustor fail to pay any such items, the trustee or beneficiary might do so without notice to or demand upon the trustor. The trust deed was acknowledged by two of the trustors, plaintiff and Elsa K. Stafford, and was recorded in January, 1946. The third trustor, Elsan H. Stafford, acknowledged the trust deed in January, 1947, and it was again recorded with his acknowledgment in July, 1947.
It is alleged that the notice and trust deed were executed and delivered pursuant to an oral agreement that Hansberger would not resort to the security of the trust deed to enforce payment of the note until he had first repossessed and sold the equipment being purchased and applied the sum received from such sale to the amount due on the note.
It is further alleged that in January, 1946, plaintiff purchased and took possession of additional equipment for an undisclosed price and executed a promissory note, due in six months, secured by another trust deed upon the same property. It is also alleged that at the time of this second transaction it was further orally agreed between plaintiff and Hansberger that payment for the equipment covered by the agreement of November 1, 1945, as well as for the equipment then purchased, would be deferred until the final outcome of certain pending litigation between plaintiff and defendants Russell and Vaughan, 'provided plaintiff could not otherwise make such payment'; that plaintiff believed the litigation in question would shortly terminate, but, that through the fault of Russell and Vaughan, it continued until late in 1949; that in reliance on the aforementioned oral agreements plaintiff did not make payment when due nor did he offer payment until late in 1949. Plaintiff next alleged in effect that Russell and Vaughan employed one Clinard (who was originally named as a defendant herein together with Hansberger but whose demurrers were sustained without leave to amend at an early stage of these proceedings) to obtain from Hansberger an assignment of the note and trust deed of November 1, 1945, to himself for the benefit of Russell and Vaughan; that he obtained, without plaintiff's knowledge, such an assignment some time prior to April 3, 1947; that on that date Clinard, acting at the request of Russell and Vaughan, executed and recorded a notice of default in the performance of the terms and provisions of the note and trust deed of November 1, 1945, and requested a sale of the lots covered thereby. On September 25, 1947, after the expiration of the statutory period following the recording of the notice of default, the defendant Title Insurance and Trust Company sold two of the lots, at trustee's sale, to Vaughan for $110, and the other three to defendant Binns for $150, and thereafter executed deeds conveying the five lots to the respective purchasers; that Binns, at the request of Russell and Vaughan, acted as the attorney and adviser of Clinard; that he took title to the lots sold to him at the trustee's sale for the use and benefit of Russell and Vaughan. There is no allegation of any irregularity in the notice of default or the conduct of the sale. Finally, it is alleged that on December 16, 1949, plaintiff tendered to Hansberger the full amount due under the oral agreement of November 1, 1945.
Count three incorporates many of the allegations contained in the preceding count, and in addition alleges that before executing the trust deed plaintiff informed Hansberger that accumulated taxes assessed against the five lots were delinquent and unpaid, and that the title was clouded by certain litigation then pending which had been instituted by Russell and Vaughan against plaintiff; that about the time default was declared on the trust deed by Clinard, Russell and Vaughan paid or caused to be paid in the name of Clinard delinquent taxes in the amount of $463.09 and requested Title Insurance and Trust Company to add this sum to that necessary to remedy the default. It is further alleged that in July, 1947, Russell and Vaughan requested and paid for a second recording of the trust deed in the amount of $7.50 and requested the trustee to add this item also to the amount necessary to remedy the default; that the sum paid for taxes and the cost of re-recording the trust deed were added to the amount necessary for plaintiff to pay in order to remedy the default thereunder; and that the trustee 'notified plaintiff that the sum necessary to remedy said default was approximately $1,600.00' which included the payments for taxes and re-recording. This count concludes with the allegation that the property covered by the trust deed at the time of the sale thereof was of a value in excess of $5,000, excluding 'an idle oil well' thereon which was of a value in excess of $25,000, and that under the belief that Hansberger, if he 'ever had any right to use said trust deed dated November 1, 1945, was still the owner thereof, plaintiff tendered to said Hansberger the full amount due under said note and trust deed in December, 1949,' which tender and demand were refused.
The fourth and fifth counts merely restate the allegations of the second and third counts and differ only in the relief demanded, namely, damages, rather than the setting aside of the trustee's sale.
Plaintiff cannot predicate a right to any relief upon the alleged oral agreement entered into concurrently with the execution of the promissory note and trust deed dated November 1, 1945, covering the transaction in question. The proof of the asserted oral agreement must of necessity rest in parol. Such evidence, however, is not admissible to establish an agreement at variance with a contract in writing. Civ.Code § 1625; Code Civ.Proc. § 1856; Scatena v. Lawson, 95 Cal.App. 720, 724-725, 273 P. 592; McArthur v. Johnson, 216 Cal. 580, 582, 15 P.2d 151; Lindemann v. Coryell, 59 Cal.App. 788, 791, 212 P. 47. This is not a rule of evidence merely but one of substantive law. Harding v. Robinson, 175 Cal. 534, 540, 166 P. 808; McArthur v. Johnson, supra.
Plaintiff contends, however, that none of the defendants, except Title Insurance and Trust Company, can invoke the parol evidence rule, asserting that they are not parties named in the trust deed and not successors to parties named therein. See Code Civ.Proc. § 1856. Plaintiff is in error for the other defendants acquired their interests by reason of the trustee's sale and their deeds from the trustee. Hence they are clearly successors in interest to the trustee and entitled to invoke the parol evidence rule.
Likewise, plaintiff is not entitled to any relief by reason...
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