Austin v. Hannon

W. C. AUSTIN, Appellant, v. WILLIAM R. HANNON et al., Respondents.

COUNSEL

Eugene D. Hill for Appellant.

David J. Keily for Respondents.

OPINION

Desmond, J., pro tem.

Plaintiff appeals from a judgment of dismissal entered upon the court's sustaining without leave to amend a general demurrer to his complaint.

[1] The sole question involved in this appeal is whether section 2924 1/2 of the Civil Code, enacted in 1933, which section precludes the entry of a deficiency judgment unless one year, as distinguished from the former period of three months, has elapsed between the recordation of the notice of breach and election to sell and the date of sale under a deed of trust, may be applied to deeds of trust executed prior to the effective date of the section. The trial court, by sustaining a demurrer to the complaint without leave to amend, concluded that the section should be given a retroactive application. This is contrary to the decision in Brown v. Ferdon, 5 Cal. 2d 226 [54 PaCal.2d 712], in which it was held that the section could not be retroactively applied without doing violence to the "contract clause" of the Constitution.

Upon the authority of the decision in the cited case, the judgment herein is reversed.

York, Acting P. J., and Doran, J., concurred.