Taliaferro v. Crola

• Decision Date: 15 July 1957
• Citation: 152 Cal.App.2d 448,313 P.2d 136
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene A. TALIAFERRO, Plaintiff and Appellant, v. Marie Jane CROLA, First Western Bank and Trust Company, Edward Hemleb, et al., Defendants and Respondents. Civ. 17336.

Page 136

313 P.2d 136

152 Cal.App.2d 448

Eugene A. TALIAFERRO, Plaintiff and Appellant, v. Marie Jane CROLA, First Western Bank and Trust Company, Edward Hemleb, et al., Defendants and Respondents.

Civ. 17336.

District Court of Appeal, First District, Division 2, California.

July 15, 1957.

Hearing Denied Sept. 11, 1957.

Eugene A. Taliaferro, San Pablo, in pro. per.

Francis W. Collins, Crockett, Matthew S. Walker, Martinez, for respondents.

DRAPER, Justice.

This is an action to quiet title. Plaintiff claims under deed and assignment from William S. Newman and wife, given in 1955. In 1950, the Newmans had executed a deed of trust naming the predecessor of defendant bank as beneficiary. Notice of default was filed and the property was sold under the power of sale contained in this deed of trust. Defendant Crola was the purchaser at this sale, which occurred after the deed and assignment to plaintiff. Defendant Hemleb is not a party named in any of the documents of title. Neither he nor the bank asserts any present title to the real property here in issue. After trial, judgment was ordered in favor of defendant Crola, title was quieted in her, and dismissal was ordered as to the bank and Hemleb. Plaintiff appeals.

Appellant's principal contention is that the trial court erred in refusing to admit evidence offered by appellant concerning irregularities in the trustee's sale. The case was tried and is argued here upon the theory that the deed of trust provided that recitals of a trustee's deed thereunder should be conclusive evidence of the facts recited. The rule is clear that, in such case, the recitals of the trustee's deed are conclusive, in the absence of fraud of which the purchaser at the trustee's sale had knowledge or notice. Jose Realty Co. v. Pavlicevich, 164 Cal. 613, 130 P. 15; see also Pacific States Savings & Loan Co. v. O'Neill, 7 Cal.2d 596, 61 P.2d 1160; Central Nat. Bank of Oakland v. Bell, 5 Cal.2d 324, 54 P.2d 1107. Such fraud need not be pleaded, (Jose Realty Co. v. Pavlicevich, supra) but the attack upon the trustee's sale must be based upon fraud, and not mere irregularity. Central Nat. Bank of Oakland v. Bell, supra. At the close of respondents' case, appellant's counsel stated 'we believe at this time we would like to go into the question of the sufficiency of the trustee's sale.' Respondents' counsel said 'we would object.' A discussion ensued, at the conclusion of which appellant's counsel said 'We would simply restate our offer of proof and let Your Honor rule on that.' The court said 'Offer of proof is denied.' We have reviewed the transcript in detail, and conclude that the utmost which appellant can be considered to have offered to prove is to be found in these statements: '* * * we believe at this time we would like to go into the question of the trustee's sale. * * * We feel that we can show by evidence that the sale was improper and imperfect.' '* * * it was our intention to attack the trustee's deed and sale on which it was based. * * * we should be entitled to proceed with our evidence attacking that trustee's sale.' Even if any or all of these statements be deemed an offer of proof, they fall far short of any suggestion of fraud or sharp dealing. Most significantly, they are wholly lacking in any inference that any of the unspecified shortcomings of the sale or the trustee's deed were in any way known to respondent Crola, the purchaser at the trustee's sale, or even to the beneficiary or the trustee of the deed of trust. One cannot urge, on appeal, grounds of admissibility which were not presented to the trial court, (Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 605, 265 P.2d 542). At most, appellant offered evidence of mere irregularity in the sale. Thus he cannot, on this appeal, argue that he was denied the right to show fraud.

Appellant next contends that specified findings are contrary to the evidence. Nowhere does he give transcript references or specify his objections. Hence we are not required to search the record. However, we have reviewed...