Wittekind v. Butler

GOTTFRIED F. WITTEKIND, Appellant, v. JENNIE M. BUTLER, Respondent.

COUNSEL

Chotiner & Chotiner and James B. Ogg for Appellant. [13 Cal. App. 2d 651]

Thomas W. Marchant for Respondent.

OPINION

The Court.

The record herein discloses that in an action to recover a deficiency alleged to be due upon a promissory note secured by a deed of trust, after a sale of the real estate described therein by the trustee thereunder, a general demurrer was sustained to the complaint, without leave to amend, the only ground for such action appearing to be the failure of plaintiff to comply with section 2924 1/2 of the Civil Code, which provides that no judgment shall be rendered for the balance due in such case unless it shall affirmatively appear that the notice of breach and election to sell was recorded one year before the date of the trustee's sale. From the judgment thereafter entered, that he take nothing by his complaint, plaintiff has appealed.

[1] The complaint alleges that the note and deed of trust were executed and delivered on November 25, 1932, prior to the effective date of section 2924 1/2 of the Civil Code. Said section, therefore, cannot apply in this case. (Brown v. Ferdon, 5 Cal. 2d 226 [54 PaCal.2d 712].)

The judgment is reversed.