CARPENTER ET AL v. HAMILTON

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

CARPENTER ET AL. v. HAMILTON.

Civ. 14113.

Decided: June 10, 1943

Roy A. Linn, of Los Angeles, for appellants. Meserve, Mumper & Hughes and Roy L. Herndon, all of Los Angeles, for respondent.

Plaintiffs appeal from a judgment (1) in favor of defendant in an action to quiet title to a parcel of land upon which was located a dwelling house, and (2) in favor of defendant on his cross complaint to recover from plaintiffs the reasonable value of the use and occupancy of the property described in the complaint. The action was tried before the court without a jury.

The essential facts are these:

In April, 1935, plaintiffs purchased from defendant two parcels of real estate hereinafter designated as Lots 5 and 6. A dwelling house was located upon Lot 5. The purchase price for the two Lots was $12,500. Plaintiffs paid $5,000 in cash, and gave a promissory note, secured by a trust deed upon the purchased property, for the balance of $7,500. On May 9, 1935, the deed of trust was duly recorded in the office of the county recorder of Los Angeles County.

On August 14, 1935, plaintiff, Margaret B. Carpenter, duly recorded in the office of the county recorder of Los Angeles County a declaration of homestead covering Lot 5 and the residence located thereon.

Thereafter plaintiffs defaulted in the payments due on the promissory note above mentioned, and defendant herein instituted an action to foreclose the trust deed pursuant to the provisions of section 725a of the Code of Civil Procedure. A decree of foreclosure was entered as prayed and subsequently affirmed by the Supreme Court. (Hamilton v. Carpenter, 15 Cal.2d 130, 98 P.2d 1027.)

The decree of foreclosure ordered the property described in the trust deed sold, and appointed R. E. Allen a commissioner for such purpose. After the decree of foreclosure had become final defendant purchased the property described in the trust deed at a commissioner's sale for the sum of $10,757.59, and received a commissioner's certificate of sale which was duly recorded. At the expiration of the period of redemption defendant received and recorded a commissioner's deed to the property.

Plaintiffs occupied the residence located on Lot 5 from May 9, 1935, to and including December 5, 1941.

There are four questions presented for our determination, which will be stated and answered hereunder seriatim.

First: Is a homestead subject to sale, pursuant to a writ of execution issued on a decree foreclosing a deed of trust as a mortgage under the provisions of section 725a of the Code of Civil Procedure, in the absence of compliance with the provisions of sections 1245 to 1255 inclusive of the Civil Code?

This question must be answered in the affirmative. Section 1241 of the Civil Code, so far as material here, reads:

“The homestead is subject to execution or forced sale in satisfaction of judgments obtained: * * *

“3. On debts secured by mortgages on the premises, executed and acknowledged by husband and wife, or by an unmarried claimant.

“4. On debts secured by mortgages on the premises, executed and recorded before the declaration of homestead was filed for record.”

The word “mortgage” as used in subdivisions 3 and 4 of the foregoing section includes for the purposes of the section a trust deed. (Roberts v. True, 7 Cal.App. 379, 381, 94 P. 392. See also 25 California Law Review (May, 1938) No. 4, Page 369.)

Therefore since a homestead selected for the benefit of the trustor and his wife is subject to a deed of trust previously executed by them and duly recorded, it was unnecessary, as contended by plaintiffs, when selling the property pursuant to the decree of foreclosure to comply with the provisions of sections 1245 to 1255 inclusive of the Civil Code.

Second: Did the trial court commit prejudicial error in refusing plaintiffs permission to file an amendment to their answer to defendant's cross complaint to show that (a) R. E. Allen was not a qualified commissioner to act pursuant to the decree of foreclosure, because he was not one of the eight court commissioners of the Superior Court of Los Angeles County authorized by article VI, section 14 of the Constitution of California and section 258 of the Code of Civil Procedure, and (b) defendant prior to the institution of the foreclosure action, had caused a notice of default to be filed with the trustee named in the trust deed, and had demanded a sale of the property described in the trust deed pursuant to the power of sale contained therein, which demand was subsequently cancelled?

This question must be answered in the negative.

(a) It is conceded that R. E. Allen was not a court commissioner of the Superior court of Los Angeles County appointed pursuant to article VI, section 14 of the Constitution of the State of California, or section 258 of the Code of Civil Procedure. However, he was appointed in accordance with the authority vested in the Superior Court by section 726 of the Code of Civil Procedure, which section has been held constitutional and not to be in conflict with any other constitutional provision. (County Bank v. Goldtree, 129 Cal. 160, 164, 61 P. 785.)

(b) We have held that a beneficiary under a deed of trust, by delivering to the trustee a declaration of default and election to proceed according to the power of sale contained in the trust deed, is not estopped from rescinding the declaration of default, and thereafter electing to pursue the alternative remedy of enforcing the obligation, to secure which the deed of trust was executed, by filing an action to foreclose the deed of trust as a mortgage pursuant to the terms of section 725a of the Code of Civil Procedure. (Carpenter v. Hamilton, Cal.App., 138 P.2d 353, this day decided.)

In view of the foregoing rules none of the facts, set forth in the proposed amendment to the answer to the cross complaint, constituted a defense to such cross complaint, and the trial court did not abuse its discretion in refusing plaintiffs permission to file a proposed amendment.

Third: When an action to quiet title is instituted, is it proper for defendant to file a cross complaint for the reasonable value of the use and occupancy by the plaintiff of the property described in the complaint?

This question must be answered in the affirmative. A cross complaint is proper whenever the defendant seeks affirmative relief which affects the property to which the action relates. (Section 442 of the Code of Civil Procedure; California Trust Co. v. Cohn, 214 Cal. 619, 624, 7 P.2d 297; Hanlon v. Western Loan & Bldg. Co., 46 Cal.App.2d 580, 604, 116 P.2d 465.)

In the instant case the plaintiff sought to quiet title to Lot 5, and the cross complaint sought to recover the reasonable rental value of the same property. Therefore the complaint and cross complaint both sought relief relative to the same property, and the cross complaint was properly filed under the provisions of section 442 of the Code of Civil Procedure.

Fourth: Is the purchaser of property at a foreclosure sale, held pursuant to a decree foreclosing a trust deed as a mortgage, entitled to recover from the trustor in possession the reasonable value of the use and occupancy of the premises from the time of the sale until the trustor vacates the property?

This question must also be answered in the affirmative. Section 707 of the Code of Civil Procedure provides that: “The purchaser from the time of the sale until a redemption, * * * is entitled to receive, from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof.” (See also Reynolds v. Lathrop, 7 Cal. 43, 46; McDevitt v. Sullivan, 8 Cal. 592; Webster v. Cook, 38 Cal. 423, 425; Harris v. Foster, 97 Cal. 292, 295, 32 P. 246, 33 Am.St.Rep. 187; Clarke v. Cobb, 121 Cal. 595, 599, 54 P. 74; Shintaffer v. Bank of Italy, 216 Cal. 243, 245, 13 P.2d 668; First Nat., etc., Bk. v. Staley, 219 Cal. 225, 227, 25 P.2d 982; Title Ins. & Trust Co. v. Pfenning–hausen, 57 Cal.App. 655, 657, 207 P. 927; Fowler v. Lane Mtg. Co., 58 Cal.App. 66, 69, 207 P. 919.)

Since the plaintiffs occupied the property in question from December 3, 1940, the date of the foreclosure sale, to and including December 3, 1941, the end of the period of redemption, defendant was entitled to recover from them the reasonable rental value of Lot 5 and the house located thereon, under the above stated rule.

In view of our conclusions it is unnecessary to consider other contentions urged by plaintiffs. Suffice it to say, this is the sixth* time that the appellate courts have been called upon to review various phases of litigation between these parties which originated with the filing of the foreclosure action described in Hamilton v. Carpenter, 15 Cal. 2d 130, 98 P.2d 1027. In each case the decisions have been against the contentions of plaintiffs herein, and in many of the cases questions previously ruled upon have been urged by plaintiffs. It is to be hoped that plaintiffs will now fully appreciate the fact that they have had their days in court and will not waste public funds in further needless and useless litigation.

For the foregoing reasons the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  (1) Hamilton v. Carpenter, 15 Cal.2d 130, 98 P.2d 1027; (2) Hamilton v. Carpenter, 52 Cal.App.2d 447, 126 P.2d 395; (3) Hamilton v. Carpenter, 52 Cal.App.2d 449, 126 P.2d 397; (4) Carpenter v. Hamilton, Cal.App., 138 P.2d 353; and (5) Carpenter v. Hamilton, Cal.App., 138 P.2d 355.

McCOMB, Justice.

MOORE, P. J., concurred. W. J. WOOD, J., concurred in the judgment.