Everts v. McFate

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Civ. No. 9782. Second Appellate District, Division One. February 28, 1936.

H. W. EVERTS, Appellant, v. C.J. McFATE et al., Respondents.

COUNSEL

Louis Ferrari, Edmund Nelson, Howard Waterman, Freston & Files and Ralph E. Lewis for Appellant.

Henry G. Bodkin for Respondents.

OPINION

Edmonds, J., pro tem.

This action was brought to recover the deficiency remaining unpaid upon a note originally secured by a deed of trust after sale of the property. The trial court sustained a general demurrer without leave to amend. The appeal is from the judgment subsequently entered.

The note and deed of trust were executed in 1929. The note matured three years thereafter. The sale was made October 17, 1933.

[1] The point presented by the respondents by their demurrer and upon appeal is the application of section 2924 1/2, Civil Code, enacted in 1933, to the note executed by them. However, in the case of Brown v. Ferdon, 5 Cal. 2d 226 [54 PaCal.2d 712], it was held that the provisions of that section cannot apply retroactively to instruments executed before its effective date.

[2] Respondents also urge that the complaint does not sufficiently allege that the requirements of section 2924, Civil Code, and section 692 Code of Civil Procedure, were complied with. We find the pleading sufficient in this regard. (Ley v. Babcock, 118 Cal. App. 525 [5 PaCal.2d 620].)

The judgment is reversed.

Houser , P. J., and York, J., concurred.