Unlawful detainer, Code Of Civil Procedure Section 1161a foreclosure sale unlawful detainers and issues of title; general

equitable considerations

Cheney raises the issue of the definition of directly relates to the issue of possession, See Green v. Superior Court at FN17 California Practice Guide: Landlord-Tenant Judge Terry B. Friedman, Judge David A. Garcia (Ret.), and Mark Hagarty Chapter 8. Unlawful Detainer Litigation: Pretrial Matters D. Answer To Unlawful Detainer Complaint **l. [8:351] Equitable defenses (1) [8:352] Effect on trial (2) [8:353] Application (a) [8:354] Parties not in tenancy relationship (b) [8:355] Trivial breach ("substantial compliance") (c) [8:356] Landlord's fraud (d) [8:359] Title in issue in related action r. Compare--issues of title (1) [8:386] Generally not cognizable defense **(2) Exceptions (a) [8:387] Quiet title action pending **(b) [8:388] Section 1161a foreclosure/sale detainers 5. Other Tenant Responses a. [8:389] Challenging alleged "rental value" b. [8:390] Contesting requisite relationship

unlawful

l. [8:351] Equitable defenses: Generally, any defense on equitable grounds is allowed. [See Union Oil Co. v. Chandler (1970) 4 CA3d 716, 722, 726, 84 CR 756, 760-761, 763 (holding, however, that antitrust violation cannot be raised as equitable defense)] (1) [8:352] Effect on trial: When equitable defenses are pleaded, the court has the option of trying the equitable issues first. If the equitable defenses resolve the case, this avoids the need to impanel a jury (tenant has absolute right to jury trial on legal issues, 9:75 ff.). (But see CCP 592--court may order equitable issues tried by jury.) (2) [8:353] Application: The following illustrate potential equitable defenses: (a) [8:354] Parties not in tenancy relationship: Absence of landlord-tenant relationship. [Manning v. Franklin (1889) 81 C 205, 207, 22 P 550, 551--P and D were parties to sale

of property; Pico v. Cuyas (1874) 48 C 639, 642-- P and D were partners, not landlord and tenant] (The existence of the landlord-tenant relationship is part of the landlord's prima facie case and its absence, therefore, will be in issue under a specific denial of the relationship allegation in the complaint.) c) [8:356] Landlord's fraud: The landlord acquired the right to possession through fraud. [Asuncion v. Super.Ct. (W.C. Fin'l, Inc.) (1980) 108 CA3d 141, 143, 166 CR 306, 308] 1) [8:357] A fraud defense is more likely to come up in unlawful detainers based on foreclosure or sale under CCP 1161a. [E.g., Asuncion v. Super.Ct. (W.C. Fin'l, Inc.), supra, 108 CA3d at 144, 166 CR at 308-- affirmative defense in UD brought after purchase that P fraudulently obtained title from D] 2) [8:358] On the other hand, it is not a defense that the landlord fraudulently induced the tenant to execute a lease unless the tenant was in possession of the premises at the time the lease was executed. [Kalmanovitz v. Rempp (1952) 111 CA2d 242, 246-247, 244 P2d 457, 459-460--no fraud defense since tenants not in possession when lease executed; Knowles v. Robinson (1963) 60 C2d 620, 626, 36 CR 33, 37--fraud defense possible where tenant in lawful possession when lease executed] (d) [8:359] Title in issue in related action: Where the landlord has put title in issue by bringing a quiet title action against the tenant, the tenant may raise the question of title in a subsequent unlawful detainer. [Greenhut v. Wooden (1982) 129 CA3d 64, 69-70, 180 CR 786, 789-790] (A title defense is also permitted in CCP 1161a unlawful detainers; see 8:388.) r. Compare--issues of title (1) [8:386] Generally not cognizable defense: Issues of title ordinarily cannot be raised in unlawful detainers and, if raised in the tenant's answer, are subject to motion to strike. [High v. Cavanaugh (1962) 205 CA2d 495, 498- 499, 23 CR 121, 122-123] (2) Exceptions (a) [8:387] Quiet title action pending: If the landlord has put title in issue through a pending quiet title action against the tenant, the tenant may raise the landlord's lack of title as an affirmative defense in the unlawful detainer. The title defense in this case is tantamount to a defense based on the absence of a landlord-tenant relationship between the parties (or such other relationship upon which a UD may be filed); 8:40 ff.

[Greenhut v. Wooden (1982) 129 CA3d 64, 69, 180 CR 786, 789; CCP 1161] **(b) [8:388] Section 1161a foreclosure/sale unlawful detainers: An eviction after foreclosure (or other) sale under CCP 1161a ( 7:256 ff.) requires the purchaser seeking eviction to have "duly perfected" title. Thus, in 1161a UDs, plaintiff's lack of title is a defense. [Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 416; Evans v. Super.Ct. (Robbins) (1977) 67 CA3d 162, 169, 136 CR 596, 600-601] Since title is part of plaintiff's prima facie case, it is in issue under a specific denial, assuming title is alleged in the complaint; or, if title is not alleged, the defect is properly raised by demurrer. Green v. Superior Court, 10 Cal.3d 616, 517 P.2d 1168, 111 Cal.Rptr. 704 (Cal., Jan 15, 1974) January 15, 1974. SUMMARY A landlord commenced an unlawful detainer action in small claims court, seeking possession of the leased premises and back rent. Admitting nonpayment of rent, the tenant defended on the ground the landlord had failed to maintain the premises in a habitable condition. The landlord was awarded possession and a money judgment. After a trial de novo on the tenant's appeal, the superior court reached the same result, holding that the tenant's right under Civ. Code, 1941 et seq., to make repairs and deduct the cost from the rent, constituted his exclusive remedy. The tenant's request for certification and transfer of the case to the Court of Appeal was denied. The Supreme Court ordered issuance of peremptory writ of mandate directing the superior court to vacate its judgment and to proceed with trial of the unlawful detainer action in accordance with the views expressed in the opinion. The court held that a warranty of habitability is implied by law in residential leases in this state and that the breach of such a warranty may be raised as a defense in an unlawful detainer action (5) Landlord and Tenant 283(1)--Unlawful Detainer--Defenses and Cross-demands. A defense normally permitted because it arises out of the subject matter of the original suit is generally excluded in an unlawful detainer action if such defense is extrinsic to the narrow issue of possession, which the unlawful detainer procedure seeks speedily to resolve,**but a tenant is not prohibited from interposing a defense which does directly relate to the issue of possession, and which, if established, would result in the tenant's retention of the premises. *619 (5)The basic teaching of Knowles, Lakeside, and the entire line of cases these decisions reflect, [FN17] is that a defense normally permitted because it "arises out of the subject matter" [websters new world law dictionary subject matter: whatever is in dispute; the actual cause of the law suit; the issue about which a right or obligation has been asserted or denied]of the original suit is generally excluded *633 in an unlawful detainer action if such defense is extrinsic to the narrow issue of possession, which the unlawful

detainer procedure seeks speedily to resolve. [FN18] **Neither Knowles, Lakeside nor any other California decision, however, prohibits a tenant from interposing a defense which does directly relate to the issue of possession and which, if established, would result in the tenant's retention of the premises. FN19 Although several Court of Appeal decisions have suggested that the Knowles doctrine precludes the introduction of all affirmative defenses in unlawful detainer actions except for "equitable" defenses (see, e.g., Union Oil Co. v. Chandler (1970) 4 Cal.App.3d 716, 721-722 [84 Cal.Rptr. 756]; Rydell v. Beverly Hills P. & P. Co. (1927) 88 Cal.App. 216, 219 [262 P. 818]; Knight v. Black (1912) 19 Cal.App. 518, 527- 528 [126 P. 512]), **this characterization is inaccurate on two grounds. First, past cases have not permitted the interposition of any conceivable equitable defense, **but have allowed only those defenses which, if established, would preclude the landlord from recovering possession of the property. **Second, California decisions have at the same time permitted the introduction of "legal" defenses whenever such defenses, if proven, would have preserved possession in the tenant. Two cases aptly illustrate the first proposition. In Smith v. Whyers (1923) 64 Cal.App. 193, 195 [221 P. 387], the court refused to permit a tenant to raise the "equitable defense" that the lease under which she held possession had been obtained by fraud, because even if the tenant established the invalidity of the lease, she would not have been entitled to retain possession but could only have rescinded and obtained damages. **By contrast, in Johnson v. Chely (1872) 43 Cal. 299, 305, a tenant was permitted to defend an unlawful detainer action on the ground that the landlord's lease was obtained by fraud, **for the tenant had been in possession prior to the lease and thus by demonstrating its invalidity would have been entitled to retain possession. (See, e.g., Schubert v. Lowe (1924) 193 Cal. 291, 295-296 [223 P. 550]; Rishwain v. Smith (1947) 77 Cal.App.2d 524, 531-533 [175 P.2d 555]; Gray v. Maier & Zobelein Brewery (1906) 2 Cal.App. 653, 657-658 [84 P. 280].) Moreover, the Johnson case also demonstrates that the rule permitting defenses that are relevant to the issue of possession is not limited to "equitable" defenses, but applies equally to "legal" defenses. In permitting the tenant to set up the defenses of fraud under the circumstances discussed above, the Johnson court specifically noted that such defense "wherever set up, is of legal and not of merely equitable cognizance ...." (Italics added.) (Johnson v. Chely (1872) 43 Cal. 299, 305.) Similarly, the court in Giraud v. Milovich (1938) 29 Cal.App.2d 543, 547-549 [85 P.2d 182], permitted a tenant in an unlawful detainer action to raise the legal defense of "partial eviction" which excused the tenant's nonpayment of rent and precluded the landlord from obtaining possession of the premises. (See also Skaggs v. Emerson (1875) 50 Cal. 3, 6; cf. Arnold v. Krigbaum (1915) 169 Cal. 143, 146-147 [146 P. 423].) Indeed several of the early cases from which the so-called "equitable defense" exception emanated permitted defenses which might more appropriately be characterized as legal than equitable. (See, e.g., Knight v. Black (1912) 19 Cal.App. 518, 526 [126 P. 512]; Strom v. Union Oil Co. (1948) 88 Cal.App.2d 78, 81-85 [198 P.2d 347].) Two of the more recent unlawful detainer cases, Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242 [22 Cal.Rptr. 309] and FN17 See, e.g., Arnold v. Krigbaum (1915) 169 Cal. 143, 145 [146 P. 423]; Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159 [69 P.2d 832]; Knight v. Black (1912) 19 Cal.App. 518, 527-528 [126

P. 512]; D'Amico v. Riedel (1949) 95 Cal.App.2d 6, 8 [212 P.2d 52]. FN18 An exception to this rule has been recognized when the tenant has voluntarily surrendered possession of the premises before the trial of the unlawful detainer action. (See, e.g., Servais v. Klein (1931) 112 Cal.App. 26, 36 [296 P. 123]; Heller v. Melliday (1943) 60 Cal.App.2d 689, 697 [141 P.2d 447].) In such a case, the right to possession would no longer be at issue and thus the need for a speedy procedure, underlying the rule, would evaporate. Schweiger v. Superior Court (1970) 3 Cal.3d 507 [98 Cal.Rptr. 729, 476 P.2d 97], provide perhaps the clearest indication that the determination of whether a defense may be raised in such a proceeding does not turn on whether such defense is "equitable" or "legal" in nature, **but rather upon whether the establishment of the defense will preclude the removal of the tenant from the premises. In Abstract Investment the court permitted a tenant to raise the landlord's alleged racially discriminatory motive as a defense in an unlawful detainer action. The court reasoned that if such discrimination were established, constitutional principles would bar the state from giving affirmative aid to the landlord's eviction efforts; hence, the proffered defense was directly relevant to whether the tenant could retain possession of the premises. Although the court noted the "equitable" considerations involved, the tenant's defense, in light of its constitutional basis, could at least equally be characterized as "legal" in nature. In Schweiger, following the lead of Abstract Investment, we upheld a tenant's defense to an unlawful detainer action on the ground that the landlord's attempt to evict a tenant was in retaliation for his exercise of his right to "repair and deduct" granted by Civil Code section 1941 et seq. Without specifically labelling this defense as "legal" or "equitable," our court recognized that to prevent the emasculation of the "repair and deduct" remedy, we were compelled to permit such a defense in an unlawful detainer action. (3 Cal.3d at pp. 513-517.)
Johnson v. Chely, 43 Cal. 299, 1872 WL 1160 (Cal. Apr Term 1872) ACTION AGAINST TENANT FOR HOLDING OVER. In an action of unlawful detainer, against a tenant for holding over, the mere fact that the defendant has been in the quiet and peaceable possession of the premises for one year before the commencement of the suit, will not defeat the action. IDEM. In such action the relation of landlord and tenant must be shown to exist, otherwise the plaintiff cannot recover, and if that relation is shown to exist, the defendant must be permitted to prove, if he can, that he did not enter under the lease, but, being already in possession, was induced to accept a lease from the plaintiff by fraudulent and false representations that the plaintiff owned the property, when it belonged to another, and, if the tenant can show such state of facts, he is not estopped by the lease. IDEM. The rule in ejectment, that if the defendant can show that he did not enter under the lease, but, being already in possession, was induced by the plaintiff through false representations that he owned the premises, to accept the lease, that **then this state of facts destroys the relation of landlord and tenant and removes the estoppel, is also the rule in an action of unlawful detainer against a tenant for holding over.

The plaintiffs recovered judgment in the Court below, and the defendant appealed. The other facts are stated in the opinion. B. S. Brooks, for Appellant. The County Court, under the Constitution, had no jurisdiction of the action. It was not intended that the summary proceeding provided for in the Act should be a substitute for the action of ejectment. ( Owen v. Doty, 27 Cal. 502; Hodgkins v. Jordan, 29 Cal. 577.) The defendant had a right to show that the relations of landlord and tenant did not exist between him and the plaintiff, because the action could only be maintained between those who hold that relation by express contract and directly; and in order to show that, the proof which he offered was pertinent-- that is, to show that he did not enter under plaintiff; that being in possession of the property he was induced by fraud and false representations to attorn to the plaintiff and to recognize him as a landlord; but afterwards, finding out the falsity of these representations and the fraud which had been perpetrated upon him, he repudiated the plaintiff and attorned to the true owner. ( Tewksbury v. Magraff, 33 Cal. 237; McDevitt v. Sullivan, 8 Cal. 592; Walls v. Preston, 28 Cal. 224; Connor v. Jones, 28 Cal. 59; Henderson v. Allen, 23 Cal. 519; Wheelock v. Warshauer, 34 Cal. 265; Reay v. Cotter, 29 Cal. 168.) In an action of forcible entry and detainer all matters of legal excuse, justification, or avoidance, can be given in evidence under a general denial of the allegations of the complaint. ( Watson v. Whitney, 23 Cal. 375.) *301 Edward J. Pringle, for Respondent. If the latter part of section three thousand one hundred and thirty-eight (Hittell) refers to the whole Act, and not to cases of force only, it means that the landlord must bring his suit before the expiration of one year from the denial of his title, or from the last payment of rent; any other construction would defeat the main purposes of the remedy. The last rent was paid on November fifteenth, and the suit was brought on September fourth, thereafter. The facts which the defendant sets up to avoid the lease constitute an equitable defense, if any, and the County Court has no jurisdiction. An equitable defense may be interposed to an action of ejectment, because under our system the same Court has jurisdiction as well of the equitable remedy invoked by the defendant, as of the legal remedy invoked by the plaintiff. When the defendant presents his equitable defense he becomes an actor, and his defense must have all the essentials of a bill in equity. ( Lestrade v. Barth, 19 Cal. 671.) As such a bill could not be presented by a plaintiff to the County Court, it follows necessarily that the defendant cannot make himself actor or plaintiff by the presentation of such a defense. Such a defense involves the question of title. In Reay v. Cotter, 29 Cal. 170, the Court said: The Act in question was not intended to apply to any case where the title to the land could be made a question, **but only to cases where, from the nature of the relation between the parties, no such question could be made because prohibited by law. * * * In such case title is not, and cannot be made, a question. In Mecham v. McKay, 37 Cal. 164, the Court says: But a more valid objection, even than this, to the admissibility of this testimony, may perhaps be found in the fact that it is an attempt to try title in an action for unlawful detainer. *302 What is the appellant's offer in this case, but an attempt to prove that the true title is in Le Roy and not in the respondents? By the Court, WALLACE, C. J.: This is an action brought in the County Court of the City and County of San Francisco, under the provisions of the Act of April 27th, 1862 (p. 652), to recover of the defendant the possession of certain tenements as a tenant holding over after demand of rent due under a lease, and failure to pay such rent for the space of three days.

The complaint alleges that in 1867 the plaintiffs, Johnson, Lazarus, and Francis Brooks, as landlords, leased the premises to the defendant, to hold from month to month, at the rent of thirty-five dollars per month, payable in advance; that the defendant entered under said lease, and still occupies said premises; that on the 15th August, 1868, three hundred and fifteen dollars was due for rent; that on August thirtieth thereafter demand was made for a surrender of the possession, and that defendant refused to quit the possession, or to pay the rent due, etc. The answer denies the making of the lease alleged, or any lease, or that the defendant went into possession thereunder; denies that any rent is due from the defendant to the plaintiffs; alleges that the defendant was in adverse possession in 1862, occupying the premises by himself and tenants for many years; that while so in possession the plaintiffs falsely represented to him that they were the owners in fee of the premises, and had been so adjudged to be by the Supreme Court of the State, and threatened to bring a suit against him unless he would attorn to them, etc. The answer further alleges that the defendant believed these statements of the plaintiffs, and, being induced and deceived thereby, he agreed to become their tenant, and under the influence of such *303 belief he did for some time thereafter pay rent to the plaintiffs; **but in December, 1867, one Le Roy, who was the true owner of the premises, brought an action against the defendant for their recovery, and the defendant then ascertaining that the representation of the plaintiffs in that respect was false, and that Le Roy was the owner in fee of the premises, renounced and disavowed his tenancy to the plaintiffs, and became and still is the tenant of Le Roy. At the trial the plaintiffs put in evidence the following agreement: This instrument witnesseth, That I, Louis Chely, have this day hired of George J. Brooks & Co., of the City of San Francisco, all that certain lot of land in said city situate on the westerly side of Battery street, and now known as number eight hundred and fifteen and eight hundred and thirteen Battery street, being thirty-five feet in width, for the term of two years from date, at the monthly rent of forty dollars per month, payable in gold coin every month in advance. And I, Louis Chely, do also agree to pay all assessments levied on said lot during said term, for the keeping of the street and crossings in repair. In witness whereof I have hereunto set my hand and seal, at the City of San Francisco, this 15th day of June, A. D. 1865. LOUIS CHELY. In presence of G. W. H. Faulkner. And proved in connection therewith, that at the time it was signed by the defendant the firm of George J. Brooks & Co. was composed of Francis W. Brooks only, and that at the expiration of the term of two years mentioned in that instrument, the defendant not desiring to take another written lease, had agreed with the agent of the plaintiffs that he would continue to occupy the premises at the rent of thirty-five dollars per month, and that under this arrangement*304 he had paid the rent up to November 1867, making his last payment on that day. The mere fact of the defendant having been in the quiet and peaceable possession for one year before the commencement of the suit would not defeat the action in this case. Such a possession would defeat an action counting upon a detainer by actual force, under section ten of the Act--the action here, however, is for an unlawful detainer--occurring by reason of occupation continued, with non-payment of rent due, though the rent was demanded within one year after it so became due--the proceeding being under sections three and four of the statute. The last ground of the motion was that the County Court had no jurisdiction of the action, but that the District Court alone has cognizance of such a case. This point, however, is answered by the cases of Caulfield v. Stevens, 28 Cal. 118; Brummagim v. Spencer, 29 Cal. 661, and Mecham v. McKay, 37 Cal. 154. I am, therefore, of opinion that the motion for a nonsuit was properly denied. **Second--The Court below refused to permit the defendant to prove that he was already in possession of the premises*305 when he agreed to become the tenant of the plaintiffs, and that they induced him to assume the relation of tenant to them by their fraudulent misrepresentation that they were the owners of the premises.

In this, I think, the Court was in error. In this action the relation of landlord and tenant must be shown to exist, otherwise the plaintiff cannot recover, and if the facts alleged by the defendant in these respects be established, the tenancy set up by the plaintiffs would be disproven. **In an action of ejectment the tenant cannot be permitted to dispute the title of his landlord. That is the general rule. **If, however, the defendant in ejectment be able to show that he did not enter under the lease, but that being already in possession he was induced to accept a lease from the plaintiff, through deception and imposition practised upon him by the latter, then he is not estopped to dispute the title of the plaintiff. Such circumstances appearing destroy the relation of landlord and tenant, and so remove the estoppel, which must otherwise conclude the defendant by reason of such a relation existing, and the plaintiff is thus thrown back to establish his title in the ordinary way, if he can. He cannot turn the defendant out by mere force of such a lease. I think that the same result must follow, so far as the defendant is concerned, in an action of unlawful detainer, in which a lease relied upon to establish the relation of landlord and tenant is shown to have been obtained under such circumstances as would not have estopped the tenant from disputing the title of the landlord in a Court in which the title could be tried. The defense, wherever set up, is of legal and not of merely equitable cognizance; and it is unreasonable that one who might rely upon that defense, if sued for the possession in the District Court, is not to be *306 heard to do so in the County Court, and is thus to be turned out of possession because his adversary has summoned him to one Court of law instead of to another Court of law. I am of opinion, therefore, that if the defendant prove his defense in this respect it must defeat the action in the County Court, where a recovery can only be had by establishing the relation of landlord and tenant to be existing between the parties. **Judgment reversed, and cause remanded for a new trial. Abstract Inv. Co. v. Hutchinson, 204 Cal.App.2d 242, 248-249, 22 Cal.Rptr. 309 (Cal.App. 2 Dist.,May 29, 1962) [5] Although defendant bases his defense upon constitutional propositions and statutes seeking to insure equal protection under the law, such defense nevertheless has its foundation in equitable principles. [6][7] The purpose of the general rule, that neither a counterclaim nor a cross complaint is admissible in an action of unlawful detainer, is to prevent tenants who have violated the covenants of their leases from frustrating the ordinary and summary remedy provided by statute for the restitution of the premises. ( Smith v. Whyers, 64 Cal.App. 193, 221 P. 387.) Also, the *249 broad question of title cannot be raised and litigated by cross complaint or affirmative defense in an unlawful detainer action since the sole issue before the court is the right to possession. ( Cheney v. Trauzettel, 9 Cal.2d 158, 159, 69 P.2d 832.) However, as the court stated in McCue v. Bradbury, 149 Cal. 108, at 113, 84 P. 993, at 995 * * * equity will refuse to enforce a forfeiture at the instance of one who has obtained the strictly legal right to it by fraud, deceit, or any other form of oppressive practice; and, upon the other hand, will relieve the innocent when such a forfeiture so secured is sought to be enforced. **314 Equitable principles apply in this state also where a forfeiture is sought in an action in unlawful detainer. ( Strom v. Union Oil Co., 88 Cal.App.2d 78, 83, 198 P.2d 347, 350.) The court in Knight v. Black, 19 Cal.App. 518, 525-526, 126 P. 512, 515, speaking of the remedy of unlawful detainer, said, * * * although the remedy provided by law for the breach of such a condition is summary in principle and process, nevertheless the very nature of the action, involving, as it does, a forfeiture, appeals to the equity side of the court, and in turn requires a full examination of all of the equities involved to the end that exact justice be done. [Citation.]'

McCue v. Bradbury, 149 Cal. 108, 84 P. 993 (Cal. Mar 31, 1906) Action by J. S. McCue and wife against William B. Bradbury and others. From a judgment for plaintiffs, defendants appeal. Affirmed. West Headnotes Mortgages 266 301

266 Mortgages 266VII Payment or Performance of Condition, Release, and Satisfaction 266k300 Tender 266k301 k. Before Default. Most Cited Cases Before the maturity of a debt secured by a deed of trust, the debtor informed the creditor of his readiness to pay the debt on the day before its maturity at a bank designated. The creditor made no objection to going to the bank for his money. The debtor was at the bank that day, ready to pay the debt, but the creditor did not appear. The following day was Sunday, and the next day the debtor obtained from the bank a certificate of deposit payable to the creditor, who was on that day informed thereof. He made no objection to the form or conditions of the tender. Held, that equity would restrain a sale of the premises and would compel the creditor to accept in satisfaction of his demand the amount due and payable on the day the certificate of deposit was procured; Civ.Code, 1511, excusing performance if the same is prevented by the act of the creditor. **993 *108 T.C.Kierulff, E. C. Chapman, and R. M. F. Soto, for appellants. H. V. Morehouse and J. E. Alexander, for respondents. HENSHAW, J. Plaintiffs had executed to trustees a deed of trust in the usual form as security for moneys advanced by defendant William B. Bradbury. The trustees, having declared a default and forfeiture under the terms of the trust, were proceeding to sell the lands, when plaintiffs instituted this action to restrain them, and to compel the defendant Bradbury to accept in extinguishment of their debt to him *109 the moneys due and evidenced by certificates of deposit issued by a bank in San Rafael, Marin county, in which county the land is situated. The history of the transactions and dealings of the parties may best be told in the language of the findings, which findings derive ample support from the evidence. It is first found that plaintiffs were the owners of the property, and that they had executed their promissory note and the trust deed; that they paid the interest on the promissory note regularly according to its terms; that the principal sum of it and the last installment of interest became due and payable on the 22d day of October, 1904, and if not paid on that date the trustees had full power to advertise and sell the land upon the demand of William B. Bradbury, for the payment of the promissory note and the interest, costs, and expenses of sale and $200 attorney's fee, as provided in the trust deed. The findings then proceed as follows: That on or about the 19th day of October, 1903, at Corte Madera, in said Marin county, the plaintiff met the said William B. Bradbury and requested him to permit the said trust deed to be continued at a less rate of interest, but the said William B. Bradbury would not consent so to do, and thereupon the said plaintiff J. S. McCue informed the said William B. Bradbury that he was ready, able and willing to pay him said principal and interest and would pay the same to him on the 22d day of October, 1904, at the Marin County Bank at San Rafael, in said Marin county, upon a cancellation of said trust deed. That said Bradbury did not then and there, or at any other time, or at all, make or express any objections to going to San Rafael to get said money, but in reply said, All right, but it is not due until the 23d. That on, and for several hours during said 22d day of October, 1904, said McCue was in San Rafael, Marin county, and was then and there ready, able and willing to pay said Bradbury the full amount of said principal, and interest then due and owing to said Bradbury upon said note, but that said Bradbury did not appear at said bank, or at any other place in San Rafael, on said 22d day of October, 1904. That the 23d day of October, 1904, was Sunday. That thereafter, to wit, on the 24th day of October, 1904, the plaintiffs herein procured from and caused to be issued by the Marin County *110 Bank, a bank of good repute, two certificates of deposit, one in the sum of three thousand two hundred and forty-three and 56/100 ($3,243.56) dollars,

payable to William B. Bradbury, the defendant herein or his order, and the other in the sum of fifty three and 44/100 ($53.44) dollars, payable to W. P. Taylor, or his order. That said W. P. Taylor was and now is the tax collector of said county of Marin, and the amount certified in said last-mentioned certificate of de posit, to wit, the sum of fiftythree and 44/100 ($53.44) dollars, was the amount of taxes levied and assessed on the 1st Monday of March, 1904, upon and against said trust deed, all of which was then due, owing and unpaid. That thereafter, to wit, on the said 24th day of October, 1905, Kittie G. McCue, one of the plaintiffs herein, prepared and signed, with the knowledge, consent and concurrence of J. S. McCue, the other of said plaintiffs, and caused to be served upon said Bradbury at his home in Corte Madera, in said county, an offer in writing, addressed to said Bradbury, to pay to said Bradbury the full amount then due to said William B. Bradbury upon said note and trust deed upon condition that said Bradbury make, execute and deliver to plaintiffs a reconveyance in due form of the land and premises theretofore conveyed in trust to secure the payment of said note. That said offer of payment was in the words and figures following, to wit: To W. B. Bradbury. You will please take notice that the full amount due on my note heretofore executed to you and secured by trust deed has been deposited at the Marin County Bank at San Rafael, California, payable to your order. You will please call at the office of E. B. Martinelli and deliver to **994 him a reconveyance in due form of the premises heretofore conveyed by me in trust to secure the payment of the note aforementioned, and the money deposited to your order will be paid over to you. Respectfully yours, Kittie G. McCue. That all this was done by the plaintiffs herein in good faith and with the intent and purpose of paying the said William B. Bradbury in full the amount then due and owing him, and that the said plaintiffs were then and there ready, willing and able to pay to said William B. Bradbury the full amount then due and owing to him under said note and trust deed. That said Bradbury received said written offer of payment on said 24th day of October, 1904, at his *111 home in Corte Madera, at or about the hour of 6 o'clock p. m. of that day. That said William B. Bradbury did not then, or at any other time, or at all, make any objections to the form, terms, or conditions of said offer of payment. That said William B. Bradbury was personally acquainted with said E. B. Martinelli, and that said William B. Bradbury was in San Rafael on October 25, 1904, and that he did not then, or at any other time, or at all, accept said offer of payment or signify a willingness to make a reconveyance to the plaintiffs upon payment of the full amount due and owing to him of the property described in said trust deed, as required and conditioned by said offer of payment and the terms and conditions of said trust deed. That on the said 24th day of October, 1904, the said William B. Bradbury demanded of and directed the said Mary M. Bradbury and John F. Allen, as trustees named in said trust deed, to advertise and sell said lands and premises, and thereupon and at the request and direction of said William B. Bradbury a notice of sale of said lands and premises under and by virtue of the terms and conditions of said trust deed, was prepared, and by said William B. Bradbury, in person, on the 27th day of October, 1904, and not before, given for publication to the Recorder-Enterprise, a weekly newspaper of limited circulation printed and published at the town of Mill Valley, in Marin county. That said Recorder-Enterprise is published at a place away from said lands and has no general circulation throughout said Marin county or at Corte Madera, where said lands and premises are situated. That thereafter, to wit, on the 29th day of October, 1904, said notice of sale appeared and was printed and published in said Recorder-Enterprise, and the sale of said land and premises was noticed and specified therein for the 19th day of November, 1904, at the hour of 12 m. of that day in front of the town hall in the town of Mill Valley. That the said sale was thereafter postponed to the 26th day of November, 1904, at 12 m. of that day. That said William B. Bradbury had ample and sufficient time after receiving said offer of payment, and before he personally gave said notice of sale to said newspaper for publication, to withdraw his demand upon said trustees to sell said lands and premises, without cost or expense to himself or plaintiffs. That in attempting to make said sale, as aforesaid, the said William *112 B. Bradbury was not acting in good faith, but sought to take advantage of said plaintiffs and to put them to large and unnecessary costs and expenses. That the said lands and premises are of a value far in excess of the amount due and owing on said note by the said plaintiffs, all of which the said William B. Bradbury then and there well knew, and the said lands and premises were ample security for the payment of said note and interest, and upon a sale thereof, properly made and advertised, would bring a sum of money far in excess of the amount of said indebtedness and the costs and expenses and attorneys fees attending the sale thereof, all of which said William B. Bradbury well knew. That the sale of said lands and premises would cast a cloud upon the title of said plaintiffs to said lands and cause plaintiffs unnecessary expense and litigation, and prevent said plaintiffs from the sale thereof or using the same as security to negotiate a loan or loans upon, all of which said defendant William B. Bradbury well knew, and their value thereof consists in the plaintiffs being able to sell them in lots and would be greatly depreciated by any sale thereof under said notice of sale. That plaintiffs have no plain or speedy or adequate remedy at law, and that the injury which they would sustain by such sale cannot be adequately compensated in damages, and that the sale thereof is wholly unwarranted and unnecessary, all of which defendant William B. Bradbury well knew; and he, the said Bradbury, knew that by complying with said written notice served upon him, and giving the release of said trust deed, he would be paid in full, but, with the fraudulent intent and

purpose of annoying and putting said plaintiffs to expense and putting said property in condition to prevent its being used as security for the loan of money, he caused said trustees to advertise said land and premises for sale.' Appellants' principal contention upon appeal is that the acts of the McCues looking to the payment of the obligation to Bradbury were entirely insufficient as a legal tender of payment, and that this being so, and plaintiffs being in default under the terms of the trust, Bradbury's trustees were justified in proceeding with the sale of the property to extinguish the McCues' obligation. But in this appellants mistake the gist of the action. The action is not based upon the assumption *113 that the tender actually made was a full and complete legal tender, but upon the contention that the acts of the defendant William B. Bradbury, in assenting to the proposed mode of payment, in failing to make objection in any form to the tender as made, and in doing all this in bad faith, to lull the plaintiffs into a fancied security, with the end in view of declaring a forfeiture and forcing a sale of **995 their property-that these acts and this conduct are sufficient to induce a court of equity to relieve against the forfeiture, and to compel defendant Bradbury to accept, in full satisfaction of his demand, the amount due and payable upon the 24th day of October, which amount the plaintiffs then and ever since have stood ready, willing, and able to pay. **It is based upon the equitable principle, often invoked and as often upheld, that equity will refuse to enforce a forfeiture at the instance of one who has obtained the strictly legal right to it by fraud, deceit, or any other form of oppressive practice; and, upon the other hand, will relieve the innocent when such a forfeiture so secured is sought to be enforced. De Groot v. McCotter, 19 N. J. Eq. 531; Adams v. Rutherford, 13 Or. 78, 8 Pac. 896; Broderick v. Smith, 26 Barb. (N. Y.) 539; Noyes v. Clark, 7 Paige (N. Y.) 179, 32 Am. Dec. 620; Moore v. Sargent (Ind. Sup.) 14 N. E. 466; Wilcox v. Allen, 36 Mich. 160; Bennett v. Stevenson, 53 N. Y. 508. All of this is in consonance with the language and spirit of section 1511 of our Civil Code, which declares that want of performance of an obligation, or any delay therein, is excused, when such performance is prevented or delayed by the act of the creditor. The findings of the court go both to the good faith, the willingness, and the ability of the plaintiffs to pay, and equally to the bad faith of the defendant William B. Bradbury in seeking to avoid the payment. The judgment which the court rendered restores to Bradbury everything of value with which he parted, and that with interest, and, upon the other hand, saves to the plaintiffs the property which is legally and justly theirs. The judgment appealed from is therefore affirmed.

Adler v. Elphick, 184 Cal.App.3d 642, 645, 229 Cal.Rptr. 254 (Cal.App. 1 Dist. Aug 20, 1986) Purchasers of residential property brought unlawful detainer action against tenant. The Municipal Court, BerkeleyAlbany Judicial District, Anthony Bellante, J., entered judgment on jury verdict that purchasers were entitled to possession and damages, and tenant appealed. The Appellate Department, Alameda County Superior Court, reversed, and certified the matter, which the Court of Appeal ordered transferred to itself. The Court of Appeal, Sabraw, J., held that: (1) community apartment project which arises when undivided interest in land is coupled with right of exclusive occupancy of any apartment located thereon, could not be created informally through oral or written lease between cotenants, or by implication from their actions, but rather, right to exclusive occupancy of particular unit had to be specified on deed itself for community apartment project to be created; (2) refusal to submit tenant's claim that purchase of residential property had created community apartment project to jury as affirmative defense was proper; and (3) damages for wrongful possession did not need to be limited to controlled rent level required by municipal rent control ordinance for subject property. Affirmed.

[1] Forcible Entry and Detainer 179

25(1)

179 Forcible Entry and Detainer 179I Civil Liability 179k22 Pleading 179k25 Plea or Answer and Subsequent Pleadings 179k25(1) k. Necessity in general. Most Cited Cases

**Affirmative defenses may be asserted in unlawful detainer actions if they go to issue of title or possession of the subject property.

[1] Affirmative defenses may be asserted in unlawful detainer actions if they go to the issue of title ( Mortgage
Guaranty Co. v. Smith (1935) 9 Cal.App.2d 618, 619, 50 P.2d 835) or possession of the subject property. ( Green v. Superior Court (1974) 10 Cal.3d 616, 633, fn. 19, 111 Cal.Rptr. 704, 517 P.2d 1168.) No reported California decision prohibits a tenant *646 from interposing a defense which, if established, would result in the tenant retaining possession of the premises. Mortgage Guarantee Co. v. Smith, 9 Cal.App.2d 618, 50 P.2d 835 (Cal.App. 1 Dist. Nov 01, 1935) (1) Preliminarily the appellants argue that the action is not in unlawful detainer but is one to try title. The question is not a new one. In Nineteenth Realty Co. v. Diggs, 134 Cal. App. 278, 288 [25 Pac. (2d) 522], and Hewitt v. Justice's Court, 131 Cal. App. 439, 443 [21 Pac. (2d) 641], we held that in actions brought under section 1161a of the Code of Civil Procedure the question of title must be tried when controverted as a necessary element of the remedy of unlawful detainer. Here the respondent is suing under the authority of the third subdivision of the section-Where the property has been duly sold ... under a power of sale contained in a deed of trust ...; appellants answered attacking the validity of the sale; hence the case comes squarely within the rule cited. **Appellants interposed a demurrer to the complaint, both general and special. The general grounds have heretofore been considered; the special grounds need not be stated. (6) When a defendant does not stand on his demurrer, but elects to answer and go to trial on the merits, the overruling of his demurrer will not support a reversal of the judgment unless the defendant shows he was prejudiced by the order. (2 Cal. Jur., pp. 1012 et seq.; Nittler v. Continental Cas. Co., 94 Cal. App. 498, 506 [271 Pac. 555,272 Pac. 309]; Harris v. Seidell, 1 Cal. App. (2d) 410, 414 [36 Pac. (2d) 1104].) Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.2d 522 (Cal.App. 1 Dist. Sep 25, 1933) (10) ID.--POSSESSION--REMEDIES--ISSUES--TITLE. --Under section 1161a of the Code of Civil Procedure, which was added to the code in 1929, an action in unlawful detainer by the purchaser at the trustee's sale under a deed of trust is a proper proceeding to remove persons from the demised premises; and, the remedy *281 being purely statutory, if the determination of the question of title to realty becomes necessary, the legislature had the right to provide for the trial of that issue in such a proceeding. The plaintiff sued in unlawful detainer as purchaser at a sale under a trust deed to recover possession of certain portions of real property held by the defendants. The cause was tried by the court and judgment was entered for the plaintiff for possession and damages. Four of the defendants have appealed upon the judgment-roll and a bill of exceptions. [10] Appellants contend that this is not a proper proceeding in unlawful detainer because it requires a trial of questions of title. The proceeding was brought under the authority of section 1161a of the Code of Civil Procedure. This section was added to the code in 1929. Subdivision 3 permits the action "where the property has been duly sold in accordance with section 2924 of the Civil Code, under a power of sale contained in a deed of trust ... and the title under the sale has been duly perfected". **The section is a legislative recognition of the departure from the early common-law rule of unlawful detainer which limited summary proceedings thereunder to the strict relation of landlord and tenant. An accepted doctrine in the operation of that rule was that a tenant was estopped from denying the title of his landlord and hence that the question of title was not triable in such a proceeding. As the right to sue was extended to the successor in interest of the landlord (Plummer v. Agoure, 20 Cal. App. 319 [128 Pac. 1014]), the

courts recognized the necessity of permitting the plaintiff to prove that he had acquired the landlord's title. This subject was before us recently in Hewitt v. Justice's Court of Brooklyn Township, 131 Cal. App. 439 [21 Pac. (2d) 641], a case involving the jurisdiction of a justice's court to entertain a proceeding under the third subdivision of section 1161a. The point was there made that the title to real property became involved whenever the plaintiff started to prove that "the title under the sale has been duly perfected". In this connection this court said (p. 509), "In other jurisdictions the right to maintain an unlawful detainer action has long been given to a purchaser under a mortgage or deed of trust against the mortgagor or maker *289 of the deed of trust, despite the fact that the purchaser must prove his acquisition of the title by the purchase. (Gage v. Sanborn, 106 Mich. 269 [64 N. W. 32]; Peters v. Balke, 170 I11. 304 [48 N. E. 1012].) It is clear, of course, that questions of title cannot generally be litigated in an unlawful detainer action. But to the limited extent of proving deraignment of title in the manner expressly provided for in the unlawful detainer statutes themselves the question of title not only may, but must, be tried in such actions if the provisions of the statutes extending the remedy beyond the cases where the conventional relation of landlord and tenant exists are not to be judicially nullified." (And see American Nat. Bank v. Johnson, 124 Cal. App. (Supp.) 783 [11 Pac. (2d) 916], and Berkeley Guar. B. & L. Assn. v. Cunnyngham, 218 Cal. 714 [24 Pac. (2d) 782].) In the instant case there is no constitutional nor jurisdictional question involved. This remedy is purely statutory and, if the determination of the question of title to realty becomes necessary, there is no reason why the legislature could not provide for the trial of that issue in a proceeding of this character. To what extent the inquiries into the title may run we need not decide. It is sufficient to say that if, in the proof of a "perfected" title as purchaser under a deed of trust the validity of the deed or of the sale under it are put in issue by defendants' denials, the plaintiff cannot be denied the right to complete his proof unless the courts are prepared to nullify the remedy granted by the code section. The judgment is affirmed.

Kessler v. Bridge, 161 Cal.App.2d Supp. 837, 327 P.2d 241 (Cal.App.Super.,Jun 11, 1958) Good case. Utilize.

Action for removal of vendor from premises and for an award of damages for withholding possession. From adverse judgment of the Municipal Court of the Citrus Judicial District, William M. Martin, J., the defendant appealed. The Superior Court, Appellate Department, David, J., held that equitable defenses that there was fraud in inducement for relinquishment of property, that delivery of deed to plaintiff was in violation of terms and conditions of escrow, that there was an unauthorized unilateral change in escrow instructions by plaintiff to effect delivery of deed, that there was a failure of consideration, that there was a cancellation of escrow and withdrawal of defendant's consent to the transfer, and that transaction was rescinded, were permissible and should have been considered. Reversed and remanded. [1] Forcible Entry and Detainer 179 29(4)

179 Forcible Entry and Detainer 179I Civil Liability 179k29 Evidence 179k29(4) k. Weight and Sufficiency. Most Cited Cases Under statute providing that where a person holds over and continues in possession of real property after a three-day written notice to quit may be removed from property when property has been duly sold by him or a person under whom he claims and the title under sale has been duly perfected, a plaintiff, to prevail, must prove affirmatively that property was duly sold and that title under sale had been duly perfected. West's Ann.Code Civ.Proc. 1161a, subd. 4. [2] Forcible Entry and Detainer 179 179 Forcible Entry and Detainer 179I Civil Liability 179k6 Nature and Form of Remedy 179k6(2) k. Trial of Title and Right of Possession. Most Cited Cases Under statute authorizing removal of a person who holds over and continues in possession of real property after a three-day written notice to quit the same when the property has been duly sold by him and title under the sale has been duly perfected, title is an issue in a proceeding for removal. West's Ann.Code Civ.Proc. 1161a, subd. 4. [3] Forcible Entry and Detainer 179 179 Forcible Entry and Detainer 179I Civil Liability 179k12 Defenses 179k12(1) k. In General. Most Cited Cases In proceeding for removal of vendor from premises and for an award of damages for withholding possession, equitable defenses that there was fraud in inducement for relinquishment of property, that delivery of deed to plaintiff was in violation of terms and conditions of escrow, that there was an unauthorized unilateral change in escrow instructions by plaintiff to effect delivery of deed, that there was a failure of consideration, that there had been a cancellation of escrow 12(1) 6(2)

and withdrawal of defendant's consent to the transfer, and transaction was rescinded, were permissible and should have considered. West's Ann.Code Civ.Proc. 1161a, subd. 4. [6] Landlord and Tenant 233 233 Landlord and Tenant 233IX Re-Entry and Recovery of Possession by Landlord 233k287 Actions for Unlawful Detainer 233k290 Right of Action and Defenses 290(1)

that been

233k290(1) k. Existence of Relation of Landlord and Tenant. Most Cited Cases Where landlord-tenant relationship is shown to exist between plaintiff and defendant but the real issue is title and not possession, unlawful detainer will not lie. [7] Forcible Entry and Detainer 179 29(2)

179 Forcible Entry and Detainer 179I Civil Liability 179k29 Evidence 179k29(2) Cases It is competent to show in an unlawful detainer proceedings that relationship is not that of ordinary landlord and tenant, but instead is a sale of an interest in the property. West's Ann.Code Civ.Proc. 1161a, subd. 4. [9] Forcible Entry and Detainer 179 179 Forcible Entry and Detainer 179I Civil Liability 179k8 k. Title to Support Action. Most Cited Cases Under statute providing for removal of person who continues in possession of real property where property has been sold by him or a person under whom he claims and title under sale has been duly 8 k. Admissibility in General. Most Cited

perfected, title is duly perfected when all steps have been taken to make it perfect, and if there is want of performance or want of true consent the title cannot be said to be perfected. West's Ann.Code Civ.Proc. 1161a, subd. 4. [1][2] Plaintiff secured judgment against defendant vendor of certain real property, for removal of the vendor from the premises and an award of damages for withholding possession. The proceeding was based on California Code of Civil Procedure sec. 1161a, subparagraph 4. To prevail, a plaintiff must prove affirmatively that the property was duly sold and that the title under the sale has been duly perfected. Contrary to the rule applying to unlawful detainer where the landlord-tenant relationship is involved, title thus becomes an issue. Kelliher v. Kelliher, 1950, 101 Cal.App.2d 226, 232, 225 P.2d 554. [3] Based upon decisions pertaining to landlord-tenant relationships, the trial court concluded that equitable defenses were not permitted, and refused to consider defendant's defenses. Under C.C.P. sec. 1161a, subparagraph 4, such defenses are proper, and the judgment must be reversed. Summarized, defendant's defenses are, substantially, **(1) fraud in the inducement for the relinquishment of the property; (2) delivery of the deed to plaintiff in violation of the terms and conditions of the escrow; (3) unauthorized unilateral change in escrow instructions by plaintiff to effect the *839 delivery of the deed; (4) failure of consideration; (5) cancellation of the escrow and hence withdrawal of the defendant's consent to the transfer before made; (6) rescission of the transaction, effected before the institution of this suit. In a case such as this it is essential that such issues be litigated, for otherwise a judgment in the unlawful detainer suit is res judicata as to them. **243Bliss v. Security First National Bank, 1947, 81 Cal.App.2d 50, 58, 183 P.2d 312; Freeze v. Salot, 1954, 122 Cal.App.2d 561, 565, 266 P.2d 140, hearing denied, Supreme Court. If grounds for rescission existed, and proper notice of rescission was given, then plaintiff at the time of institution of this suit had no title, and the sale after rescission is nonexistent, and may be declared so. Civil Code secs. 1688, 1689; cf. Knight v. Black, 1912, 19 Cal.App. 518, 126 P. 512, equitable defenses permitted; Freeze v. Salot, supra, 1954, 122 Cal.App.2d 561, 564, 266 P.2d 140, defenses against sale permitted.

[4][5][6][7] The division of the Code of Civil Procedure (Part 3, Title 3, Chapter 4) in which sec. 1161a(4) is found is denominated as Summary Proceedings for Obtaining Possession of Real Property in Certain Cases', and prior to 1929, concerned forcible entries and detainers, and holding over by tenants beyond the terms of their tenancy. The doctrine in case of the landlord-tenant relationship is said to be that title will not be litigated in unlawful detainer proceedings. It has been often said that to do so would deprive the remedy of its summary character. **But underlying such doctrine is the basic principle that a tenant is estopped to deny the title of his landlord. Reay v. Cotter, 1865, 29 Cal. 168, 170; Johnson v. Chely, 1872, 43 Cal. 299, 305; Francis v. West Virginia Oil Co., 1917, 174 Cal. 168, 170, 162 P. 394. **Where the landlord-tenant relationship is shown to exist, title is not litigated; **but if it is shown that the real issue is not possession, but title, then unlawful detainer is held not to lie. **Reay v. Cotter, supra. It is erroneous to say that title is never in issue, for it is permissible to litigate it in connection with the existence of the landlord-tenant relationship ( Steinback v. Krone, 1868, 36 Cal. 303; Reay v. Cotter, supra, 29 Cal. 168, 171). If the circumstances involve such fraud as the tenant could assert against the lease itself to invalidate it, this may be urged in an unlawful detainer proceeding ( Johnson v. Chely, supra, 43 Cal. 299, 305). It is competent to show that the relationship*840 is not that of ordinary landlord and tenant, but instead is a sale of an interest in the property. Manning v. Franklin, 1889, 81 Cal. 205, 22 P. 550, or involves a partnership ( Pico v. Cuyas, 1874, 48 Cal. 639; Henderson v. Allen, 1863, 23 Cal. 519, 521). [8] In Francis v. West Virginia Oil Co., supra, 1917, 174 Cal. 168, 162 P. 394, it was held that a defaulting vendee in possession of real property was not a tenant in any sense, so as to permit the employment of C.C.P. sec. 1161 applying to unlawful detainer; and that an action to eject such a person was not proper in unlawful detainer, in that he was entitled to show title undergirding his possession, and to present his equities and defenses. Specifically, it was held that default in the terms of an agreement of purchase of realty did not make the vendee a tenant of the vendor. 174 Cal. at page 171, 162 P. at page 395. (Accord: Mertens v. Keene, 1926, 77 Cal.App. 786, 247 P. 543.) Thereafter, in 1929, section 1161a was added to the Code of Civil Procedure to provide for removal of persons who continued in possession of real property following a sale if the title under the sale has been duly perfected, in those instances (1) where a sale results from an execution against the possessor, or **(2) the foreclosure of a mortgage executed by the possessor, or **(3)

foreclosure under the terms of a deed of trust. American Nat. Bank v. Johnson, 1932, 124 Cal.App.Supp. 783, 786, 11 P.2d 916, recognized that C.C.P. sec. 1161a applies to situations where strictly speaking there is no landlord-tenant relationship. Tenancy is not a necessary incident to a sale and a three-day notice to deliver up possession does not create a tenancy. C.C.P. sec. 1161a covers other instances where dispossession by legal procedures is preferred to self-help. No doctrine of estoppel is involved, comparable to that between the landlord and tenant. Thus, upon a purported foreclosure **244 sale under a trust deed, it is competent to assert in an action under C.C.P. sec. 1161a (3) that the trust deed was not in default, even though the finding to such effect depends in part upon equitable estoppel of the beneficiary ( Altman v. McCollum, 1951, 107 Cal.App.2d Supp. 847, 236 P.2d 914); and the validity of the sale and of the trustee's deed was held to be so directly in issue in unlawful detainer that the judgment therein was res judicata ( Seidell v. Anglo-California Trust Co., 1942, 55 Cal.App.2d 913, 132 P.2d 12) and that case is authority that lack of consideration for a note in question *841 was a legal issue to be determined in the unlawful detainer action (in 55 Cal.App.2d at page 922, 132 P.2d at page 16). Although there was a strong dissent, based in part upon Cheney v. Trauzettel, 1937, 9 Cal.2d 158, 69 P.2d 832, the Supreme Court denied a hearing in the Seidell case. **The holding in Altman v. McCollum, supra, 107 Cal.App.2d Supp. 855-856, 236 P.2d 914, is to the effect that C.C.P. sec. 89, relating to jurisdiction of municipal courts has expressly conferred upon them power to consider equitable defenses in suits under C.C.P. sec. 1161a. As between the parties here, there appears to be a bona fide dispute whether the property has been duly sold and the title duly perfected. [9] Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt. Hocking v. Title Ins. & Trust Co., 1951, 37 Cal.2d 644, 649, 234 P.2d 625, 40 A.L.R.2d 1238, which includes good record title ( Gwin v. Calegaris, 1903, 139 Cal. 384, 73 P. 851), but is not limited to good record title, as between the parties to the transaction. The term duly implies that all of those elements necessary to a valid sale exist, else there would not be a sale at all. If there is want of performance or want of true consent the title cannot be said to be perfected. (C.C. secs. 15671589.) The court in an unlawful detainer under C.C.P. sec. 1161a(4) has jurisdiction to determine the validity of such defenses. If delivery of the deed violated the instructions, or if they were altered by plaintiff without defendant's authorization, there was no

sale, and no rights can be derived therefrom by plaintiff. Los Angeles City H. S. District v. Quinn, 1925, 195 Cal. 377, 383, 234 P. 313; Sousa v. First California Co., 1950, 101 Cal.App.2d 533, 538-539, 225 P.2d 955; note 48 A.L.R. 405. While one case states that forgery could not be set up in unlawful detainer proceedings under C.C.P. sec. 1161a ( Higgins v. Coyne, 1946, 75 Cal.App.2d 69, 75, 170 P.2d 25), we cannot reconcile this with the other cases nor with the code, since proceedings based upon on a forged deed certainly cannot perfect the title. No bona fide purchaser is involved here. A forgery is a nullity ( Marlenee v. Brown, 1943, 21 Cal.2d 668, 677, 134 P.2d 770); and so is delivery of a deed pursuant to instructios if they, as alleged, were altered by the plaintiff and his *842 partner without any knowledge or authoriation of the defendant. [10] Quite independently of any ground of rescission, it is alleged that the defendant cancelled the escrow in which the deed was impounded on or about September 20, 1957. The deed was recorded September 26, 1957. Suit herein was filed November 22, 1957. If the escrow was validly cancelled before a valid delivery of the deed, then plaintiff cannot claim immediate possession. If the cancellation operated as a breach of contract, there still would not necessarily have been a sale. An unlawful detainer proceeding is not a substitute for an equitable action for specific performance even if it should be claimed the vendor has breached his contract. It follows, therefore, that the judgment must be reversed, and the cause remanded for a new trial.
Kessler v. Bridge, 161 Cal.App.2d Supp. 837, 327 P.2d 241 (Cal.App.Super.,Jun 11, 1958) **(3) Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt. (Hocking v. Title Ins. & Trust Co. (1951), 37 Cal.2d 644, 649 [234 P.2d 625, 40 A.L.R.2d 1238]), which includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73 P. 851]), but is not limited to good record title, as between the parties to the transaction. The term "duly" implies that all of those elements necessary to a valid sale exist, else there would not be a sale at all. (2b) If there is want of performance or want of true consent the title cannot be said to be perfected. (Civ. Code, 1567-1589.) The court in an unlawful detainer under Code of Civil Procedure, section 1161a, subdivision (4), has jurisdiction to determine the validity of such defenses. If delivery of the deed violated the instructions, or if they were altered by plaintiff without defendant's authorization, there was no sale, and no rights can be derived therefrom by plaintiff. (Los Angeles City H.S. District v. Quinn (1925), 195 Cal. 377, 383 [234 P. 313]; Sousa v. First California Co. (1950), 101 Cal.App.2d 533,; 538-539 [225 P.2d 955]; note, 48 A.L.R. 405.) While one case states that forgery could not be set up in unlawful detainer proceedings under Code of Civil Procedure, section 1161a (Higgins v. Coyne (1946), 75

Cal.App.2d 69, 75 [170 P.2d 25]), we cannot reconcile this with the other cases nor with the code, since proceedings based upon a forged deed certainly cannot "perfect the title." No bona fide purchaser is involved here. A forgery is a nullity (Marlenee v. Brown (1943), 21 Cal.2d 668, 677 [134 P.2d 770]); and so is delivery of a deed pursuant to instructions if they, as alleged, were altered by the plaintiff and his *842 partner without any knowledge or authorization of the defendant.

Stephens, Partain & Cunningham v. Hollis, 196 Cal.App.3d 948, 952953, 242 Cal.Rptr. 251 (Cal.App. 3 Dist. Dec 04, 1987) citing Kessler v. Bridge with approval Good case. Utilize.

(2) To establish that he is a proper plaintiff, one who has purchased property at a trustee's sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter 'duly perfected' his title. [Citation.] ( Vella v. Hudgins (1977) 20 Cal.3d 251, 255 [ 142 Cal.Rptr. 414, 572 P.2d 28]; see Cruce v. Stein (1956) 146 Cal.App.2d 688, 692 [ 304 P.2d 118]; Kelliher v. Kelliher (1950) 101 Cal.App.2d 226, 232 [ 225 P.2d 554]; Higgins v. Coyne (1946) 75 Cal.App.2d 69, 73 [ 170 P.2d 25]; *953Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 288-289 [ 25 P.2d 522].) One who subsequently purchases property from the party who bought it at a trustee's sale may bring an action for unlawful detainer under subdivision (b)(3) of section 1161a. ( Evans v. Superior Court (1977) 67 Cal.App.3d 162, 169 [ 136 Cal.Rptr. 596].) However, the subsequent purchaser must prove that the statutory requirements have been satisfied, i.e., that the sale was conducted in accordance with section 2924 of the Civil Code and that title under such sale was duly perfected. (Ibid.) Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt. ( Hocking v. Title Ins. & Trust Co. (1951), 37 Cal.2d 644, 649 [ 234 P.2d 625, 40 A.L.R.2d 1238]), which includes good record title ( Gwin v. Calegaris (1903), 139 Cal. 384 [ 73 P. 851]), ... ( Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841 [ 327 P.2d 241].) To the limited extent provided by subdivision (b)(3) of section 1161a, title to the property may be litigated in an unlawful detainer proceeding. ( Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159 [ 69 P.2d 832].) While an equitable attack on title is not permitted ( Cheney, supra, 9 Cal.2d at p. 160), **issues of law affecting the validity of the foreclosure sale or of title are properly litigated. ( Seidell v. Anglo-California Trust Co. (1942) 55 Cal.App.2d 913, 922 [ 132 P.2d 12], approved in Vella v. Hudgins, supra, 20 Cal.3d at p. 256.)

Evans v. Superior Court, 67 Cal.App.3d 162, 169, 136 Cal.Rptr. 596 (Cal.App. 2 Dist.,Feb 15, 1977) Bad case. Vella overruled Evans in December 1977, and Evans published on February 1977 that equitable defenses are at issue insofar as they would if successful preclude the removal of the tenant. California Supreme Court opinion Vella v. Hudgins 20 Cal.3d 251, 255, 572 P.2d 28, 142 Cal.Rptr. 414 (Cal. Dec 08, 1977) states that legal or equitable issues are at issue, cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude the removal of the tenant from the premises. The instant case is a bad case because facts of the

case are unclear, makes broad general incorrect statement that equitable issues cannot be raised, determined or tried. Evans is distinguished by Asuncion and Mehr on the ground of issue of the acquisition of title by fraud. And Old v. Seibert is distinguished because the issues did not involve acquisition of title by fraud. [4] Forcible Entry and Detainer 179k6(1) Most Cited Cases 6(1)

[4] Forcible Entry and Detainer 6(2) 179k6(2) Most Cited Cases Essence of unlawful detainer statutory action is a right to possession and action remains summary in character; **however, to limited extent of proving deraignment of title in manner expressly provided for in unlawful detainer statutes themselves the question of title not only may, but must, be tried in such actions. West's Ann.Code Civ.Proc. 1161. [5] Mortgages 372(4) 266k372(4) Most Cited Cases In an action under unlawful detainer statute provision applicable where property has been sold in accordance with section of the Civil Code, under a power of sale contained in a deed of trust, title is in issue to extent that party bringing action must prove that sale was held in compliance with said section of the Civil Code and that title under such sale was duly perfected, and adding additional requirement that a subsequent purchaser from foreclosure sale purchaser prove his own acquisition of title from said foreclosure sale purchaser no more destroys summary nature of proceedings than does corresponding requirement that landlord's successor in estate prove his acquisition of such interest in proceeding pursuant to unlawful detainer statute. West's Ann.Code Civ.Proc. 1161a, 1161a, subd. 3; West's Ann.Civ.Code, 2924. At common law the sole issue in an unlawful detainer action was the right to possession, a tenant being estopped to challenge his landlord's claim of title. The essence of the statutory action, too, is a right to possession and remains summary in character; however, '. . . to the limited extent of proving deraignment of title in the manner expressly provided for in the unlawful detainer statutes themselves the question of title not only may, but must, be tried in such actions **601 . . ..' (Hewitt v. Justice's Court, supra, 131 Cal.App. 439, 443, 21 P.2d 641, 643.) In an action pursuant to section 1161a, subdivision 3, title is in issue to the extent that the plaintiff must prove that a sale was held in compliance with section 2924 of the Civil Code, and that title under such sale was duly perfected. (Kartheiser v. Superior Court, 174 Cal.App.2d 617, 345 P.2d 135.) Kartheiser v. Superior Court In and For Los Angeles County, 174 Cal.App.2d 617, 620, 345 P.2d 135 (Cal.App. 2 Dist. Oct 21, 1959) (1) Evidence 69--Judicial Notice--Court Records. In a mandamus proceeding to compel the superior court to vacate an

order continuing the trial of an unlawful detainer action brought by the purchaser of property at a trustee's sale against the former owners in possession, the District Court of Appeal could take judicial notice of the record in an appeal pending in that court from a judgment in an action by the former owners of the property to enjoin the trustee's sale and for a declaration that a tender previously made by them was sufficient to cure the existing default and prevent a valid foreclosure sale. See Cal.Jur.2d, Evidence, 52-54; Am.Jur., Evidence, 86-88. (2a, 2b) Landlord and Tenant 284--Unlawful Detainer--Issue of Title. **Although generally title cannot be tried in an unlawful detainer action, that rule was not applicable to an unlawful detainer action brought by the purchaser of property at a trustee's sale against the former owners in possession where defendants' answer denied plaintiff's ownership on the ground that the trustee's sale was invalid. (3) Landlord and Tenant 284--Unlawful Detainer--Issue of Title. Under Code Civ. Proc., 1161a, subd. 3, providing that one holding over after notice to quit may be removed where the property has been duly sold in accordance with Civ. Code, 2924, under a power of sale contained in a deed of trust executed by him, and the title under the sale has been duly perfected, title, to the extent required by 1161a, not only may, but must, be tried in unlawful detainer actions if the provisions of the statute extending the remedy beyond the cases where the conventional relation of landlord and tenant exists are not to be judicially nullified. (2a) It is argued that that issue is not in the unlawful detainer action because title cannot be tried in such a summary proceeding. Conceding that to be the general rule, **it is not applicable where the validity of the trustee's sale is attacked. If he has not pursued the terms of the trust deed and the statute the trustee's deed passes only a vulnerable title. **(3) In an action for unlawful detainer, section 1161a therefore necessarily requires proof that the property was 'duly sold in accordance with Section 2924 of the Civil Code,' and that 'the title under the sale has been duly perfected.'(Italics ours.) Under such unlawful detainer statutes it has been held that title, to the extent required by section 1161a, 'not only may, but must, be tried in such actions if the provisions of the statutes extending the remedy beyond the cases where the conventional relation of landlord and tenant exists are not to be judicially nullified.' (Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 920 [132 P.2d 12].) To same effect, see Hewitt v. Justice's Court, 131 Cal.App. 439, 443 [21 P.2d 641]; *621Mortgage Guarantee Co. v. Smith, 9 Cal.App. 2d 618, 619 [50 P.2d 835]; Freeze v. Salot, 122 Cal.App.2d 561, 564 [266 P.2d 140]; Altman v. McCollum, 107 Cal.App.2d Supp. 847, 856-857 [236 P.2d 914]; Bliss v. Security-First Nat. Bank, 81 Cal.App.2d 50, 58 [183 P.2d 312].

Code Of Civil Procedure Section 1161a. Sale of manufactured home, mobilehome, floating home or real property; removal of person holding over after notice (3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected. Section 2924, of the Civil Code of the State of California. (a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply: The plain meaning of the statute of C.C. 2924 states that power of sale is to be exercised to be exercised after a breach of the obligation for which that mortgage or transfer is a security

Miller & Starr California Real Estate Digest 3d Database updated August 2010 Landlord and Tenant XIII. Unlawful Detainer Topic Summary 169. Defenses and crossdemands A proceeding for unlawful detainer is summary in character, and ordinarily, only claims bearing directly on the right of immediate possession are cognizable. Also, cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude removal of the tenant from the premises. As a consequence, a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title or to adjudicate other legal and equitable claims between the parties. However, to the limited extent provided by Code Civ. Proc., 1161a, subd. 3, providing that a person who continues possession of real property may be removed where the property has been duly

sold and the title of the sale has been duly perfected, title may be litigated in such a proceeding. Vella v. Hudgins, 20 Cal. 3d 251, 142 Cal. Rptr. 414, 572 P.2d 28 (1977) A defense normally permitted because it arises out of the subject matter of the original suit is generally excluded in an unlawful detainer action if such defense is extrinsic to the narrow issue of possession, which the unlawful detainer procedure seeks speedily to resolve, but a tenant is not prohibited from interposing a defense which does directly relate to the issue of possession, and which, if established, would result in the tenant's retention of the premises. Green v. Superior Court, 10 Cal. 3d 616, 111 Cal. Rptr. 704, 517 P.2d 1168 (1974).

Vella v. Hudgins, 20 Cal.3d 251, 255, 572 P.2d 28, 142 Cal.Rptr. 414 (Cal. Dec 08, 1977) Good case. Utilize.

*255[1] The history and scope of unlawful detainer actions have been discussed at length in several recent appellate decisions. (E. g., Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, 1033-1035, 112 Cal.Rptr. 884;Union Oil Co. of Cal. v. Chandler (1970) 4 Cal.App.3d 716, 721-722, 84 Cal.Rptr. 756; cf. Green v. Superior Court (1974) 10 Cal.3d 616, 631-634, 111 Cal.Rptr. 704, 517 P.2d 1168.) For our present purpose, it is sufficient to note that the proceeding is summary in character; **that ordinarily, only claims bearing directly upon the right of immediate possession are cognizable ( Green, supra, at pp. 632-634, 111 Cal.Rptr. 704, 517 P.2d 1168;Knowles v. Robinson (1963) 60 Cal.2d 620, 625, 36 Cal.Rptr. 33, 387 P.2d 833;Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159, 69 P.2d 832; see Cruce v. Stein (1956) 146 Cal.App.2d 688, 304 P.2d 118); and that cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude the removal of the tenant from the premises. ( Green, supra, at p. 634, fn. 19, 111 Cal.Rptr. at p. 716, 517 P.2d at p. 1180;Union Oil Co. of Cal., supra, 4 Cal.App.3d at p. 725, 84 Cal.Rptr. 756.) And the court stated, **A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property such as Hudgins. Section 1161a provides for a narrow and sharply focused examination of title. To establish that he is a proper plaintiff, one who has purchased property at a trustee's sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter duly perfected his title. (s 1161a, subd. 3.) Thus, we have declared that to this limited extent, as provided by the statute, . . . title may be litigated in such a proceeding. ( Cheney v. Trauzettel, supra,

9 Cal.2d at p. 159, 69 P.2d at p. 833.) (Vella v. Hudgins, supra, 20 Cal.3d at p. 255) Cheney v. Trauzettel, 9 Cal.2d 158, 159-160, 69 P.2d 832 (Cal.,Jun 29, 1937) [1][2] The trial court properly held that in the summary proceeding in unlawful detainer the right to possession along was involved, and the**broad question of title could not be raised and litigated by cross-complaint or affirmative defense. See Arnold v. Krigbaum, 169 Cal. 143, 146 P. 423, Ann.Cas.1916D, 370; Bekins v. Trull, 69 Cal.App. 40, 230 P. 24. It is true that where the purchaser at a trustee's sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. Hewitt v. Justice' Court, 131 Cal.App. 439, 21 P.(2d) 641; Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.(2d) 522; Berkeley Guarantee Building & Loan Ass'n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782. [3] *160 In the instant case the cross-complaint is in the usual form of a complaint to quiet title, under which pleading any question with respect to the title could be tried. The answer, in substance, sets up the defense that the sale was merely colorable, in pursuance of an agreement to effect a transfer of property to preserve it from execution at the hands of a judgment creditor; and that plaintiffs did not thereby acquire a valid title. **But compliance with all the statutory requirements in respect of the conduct of the sale is admitted, and the only attack on the propriety of the sale procedure is based upon the provision in the deed of trust calling for payment in gold coin, which provision is, under the existing federal law, unenforceable. Irrespective of the merits of the defenses raised by the answer, the alleged equitable grounds of attack on plaintiff's title have no place in the present summary proceeding, for, if such issues are permissible, the proceeding entirely loses its summary character. In our opinion, the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title. Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment. In Bank of America, N.A. v. La Jolla Group II, 129 Cal.App.4th 706, 712 78 Cal.Rptr.3d 825, the court stated,

In this case, it is undisputed that the trustor and beneficiary entered into

an agreement to cure the default. It follows that the beneficiary had no right to sell afterward. Therefore, the foreclosure sale was invalid. And, [2] La Jolla argues that even if the foreclosure constituted a violation by the beneficiary of the rights of the trustor, the trustees deed that La Jolla received and recorded conveyed unassailable title to it, because it was a bona fide purchaser. This argument is based on certain statutory presumptions that become effective when a trustees deed containing prescribed recitals is delivered to a bona fide purchaser. Cal.App.4th at p. 713) And, Like the statutory provisions regarding reinstatement, the provisions La Jolla relies on regarding the rights of a recipient of a trustees deed have no effect on this **830 case. The provisions in question establish presumptions about the adequacy of notices related to a foreclosure sale: A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of *714 default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.(2924.) There is no contention in this case that the foreclosure sale was not properly noticed. The sale was improper because the loan was current and therefore the beneficiary had no right to exercise the power of sale. No statute creates a (Bank of America, N.A. v. La Jolla Group II, supra, 129

presumption-conclusive or otherwise-for any purchaser-bona fide or otherwise-that any recitals in a trustees deed render effective a sale that had no contractual basis. (Bank of America, N.A. v. La Jolla Group II, supra, 129 Cal.App.4th at pp. 714715)

Harker v. Rickershauser, 94 Cal.App. 755, 271 P. 912 (Cal.App. 3 Dist.,Nov 14, 1928) Action by Mabel E. Harker against F. J. Rickershauser and another. Judgment for plaintiff, and defendants appeal. Affirmed. West Headnotes [1] Evidence 383(7)

157k383(7) Most Cited Cases Recitals of trustee's deed that mortgagors had defaulted held not conclusive against mortgagors' claim that condition rendering trust deed void had been performed. [3] Mortgages 101

266k101 Most Cited Cases Word "or" in deed of trust reciting it should be void on happening of specified contingencies held not construable as "and." [7] Ejectment 84(2)

142k84(2) Most Cited Cases In action for possession, proof that trustee's deed under which defendants claimed was void, though not pleaded in complaint, held admissible in avoidance of defense. This is an action brought to recover possession of 350 acres of land in Yolo county. The complaint alleges that plaintiff is now, and ever since the 7th day of February, 1922, has been, the owner thereof; that defendants, on or about the 8th day of May, 1923, entered into said land and ousted plaintiff therefrom; and that defendants now wrongfully withhold possession of said premises. Judgment for possession is prayed for. The answer denies the ownership by plaintiff. As a further defense, defendants set up the execution of a certain deed of trust by plaintiff, covering said property; that a default occurred on behalf of plaintiff in the performance of certain condition therein; that a sale of said property under said trust deed was had; and **913 that defendant F. J. Rickershauser purchased the same, and that he is now the owner thereof.

The trial court found that said trust deed was null and void, and judgment was entered for plaintiff, decreeing her to be the owner of said property, and that she recover possession thereof. From this judgment defendants appeal.

It appears from the record that in the month of January, 1922, plaintiff was the owner of certain real property in Los Angeles, which she agreed to trade with defendants for the 350 acres of land in Yolo county, above referred to. Pursuant to said agreement, plaintiff executed and delivered to defendants a deed to her said property, and defendants conveyed said Yolo county property to plaintiff. The whole transaction appears to have been consummated by March 1, 1922, on which date the deed to plaintiff was recorded. During the negotiations between said parties, it *758 developed that there was outstanding a judgment against J. B. Harker, husband of plaintiff, in the sum of $7,200 or thereabouts, and that execution had theretofore been levied against the interest of said Harker in the Los Angeles property involved in said trade, said property standing on the records at the time of said levy in the name of plaintiff. For the purpose of protecting defendants from the levy of said execution, a trust deed was executed by plaintiff and her said husband, covering said Yolo county property, and containing the following provision: "In the execution, delivery and acceptance of this trust deed it is expressly understood and agreed between all parties hereto, that if the parties of the first part pay said judgment or cause the said execution to be released from said property first herein described, then the said note and this trust deed to become null and void and of no effect." A note for $7,200, due six months connection with said trust deed. after date, was executed in

Plaintiff introduced in evidence her deed from defendant, testified that defendants were in possession of the premises described therein, and rested. Defendants thereupon introduced in evidence the said trust deed and a deed from the trustee named therein, and given pursuant to a sale had under the provisions thereof, and rested. Plaintiff, in rebuttal, then introduced in evidence a certified copy of the release of the levy of execution above referred to, dated February 27, 1922. There is also testimony to the effect that the judgment under which said execution was levied was satisfied September 30, 1922. The facts above recited with reference to the release of the levy of the execution were found by the court to be true. The court also found

that said sale under the trust deed was made after defendants knew that said execution had been released and the judgment under which the same was levied had been satisfied. [1] It is first contended by appellants that the trustee's deed and the recitals therein were a conclusive and complete defense to the action, and "that said deed and its recitals in this action could not be attacked, qualified or disproved by plaintiff." The trust deed contained the following provision: *759 "And in the event of the sale of said property, or any part thereof, and the execution of a deed or deeds therefor under these trusts, then the recitals therein of default, that the beneficiary or holder of the note had given notice of the default and election to sell the described premises under the powers of the deed of trust, to satisfy the debt, was duly recorded in the office of the county recorder for three months prior to the notice of sale, due publication of the notice of sale, due and proper posting of the notice of sale, and also publication of notice of postponement, if the sale was postponed; that the sale was made to the highest bidder; that the purchase-money was paid; and any such deed or deeds with such recitals shall be effectual and conclusive, as against the said parties of the first part, their heirs or assigns, and all other persons; and the recital of the receipt of the purchase-money contained in any deed executed to the purchaser, as aforesaid, shall be a sufficient discharge to such purchaser from any obligation to see to the proper application of the purchase-money, according to the trusts provided in this instrument." The deed of the trustee contained recitals of all the facts referred to in the foregoing provision. And the court stated, ********* "In the execution, delivery and acceptance of this trust deed it is expressly understood and agreed between all parties hereto, that if the parties of the first part pay said judgment or cause said execution to be released from said property first herein described, then the said note and this trust deed to become null and void, but if said first parties fail to pay said judgment or cause the release of said execution within six months from date hereof, then third party assumes and agrees to pay said judgment, or so much thereof *761 as at said time remains due and unpaid, on or before one year thereafter.

"The payment of said judgment by third party shall prerequisite to the foreclosing of this trust deed."

not

be

The trustee's deed does not refer in any manner or particular to the last-mentioned provisions. It recites that "there has been a default in the payment of money advanced in accordance with the provisions of said trust deed." The whole intent and purpose of executing said trust deed was, as both parties admit, to secure the payment of the judgment or the release of the execution levied pursuant thereto. It was given as security for the performance of either of said acts by the first party named therein, and upon such performance it is expressly provided that the instrument shall "become null and void." As there were clearly no recitals contained in the trustee's deed with reference to the said judgment and execution, there is little or no force in the contention made by appellants. Even assuming that such recitals could be established by inference, they would not be conclusive in an action between the parties to the trust deed. [2] A trustee under a deed of trust is the common agent of both parties (Ainsa v. Mercantile T. Co., 174 Cal. 504, 163 P. 898), and the theory upon which the courts have proceeded in construing recitals in trustee's deeds is that the grantor under the trust deed is bound by the delegation of such authority as is given to the trustee in the exercise of his trust. This includes the execution of a deed pursuant to a sale, and the inclusion in said deed of such recitals as the parties may agree upon, and may include a clause relative to the conclusiveness of such recitals as to truth of the facts stated therein. Such recitals are conclusive where an innocent third party is the grantee in the trustee's deed (Jose Realty Co. v. Pavlicevich, 164 Cal. 613, 130 P. 15), but they are not conclusive as between the parties to the trust deed. (Seccombe v. Roe, 22 Cal. App. 139, 133 P. 507). In the instant case the trust deed was given as security for the performance of either of two acts upon the part of the trustor. It is admitted by both parties that one of said acts, to wit, the release of the levy of execution, was performed sixteen days from the date of the said trust deed, and the court found, upon sufficient evidence, that the beneficiary knew of the *762 performance at or about the date it took place. If, notwithstanding such knowledge, defendant proceeded to have a sale made of the premises under such trust deed, this was palpable fraud upon the trustor, and under such circumstances plaintiff was entitled to go behind the recitals of the trustee's deed and prove the facts, even though they might be inconsistent or contradictory to such recitals. Jose Realty Co. v. Pavlicevich, supra. The court did not err in permitting plaintiff to prove these facts.

A number of cases have been cited by appellant upon the question of the conclusiveness of the recitals in the trustee's deed. None of these referred to construed a provision that upon the performance of a certain act by the trustor the trust deed shall become null and void. In the cases cited, the trustee's deeds were, at the most, merely voidable in an action between the parties. Hence they would pass title, though subject to direct attack by one of the parties. This is clearly set forth in Seccombe v. Roe, 22 Cal. App. 139, 133 P. 507. The case of Jose Realty Co. v. Pavlicevich, supra, involves facts similar to the case under consideration. The complaint was an ordinary one to quiet title. The defendant set up a deed to himself from a trustee and executed in pursuance of a sale had under a trust deed. Fraud was not pleaded, but the Supreme Court held that plaintiff was permitted to introduce evidence upon the question as to whether there had been a default under the trust deed, if such proof established fraud. Appellants contend that this action is one brought to recover possession merely, and is in the nature of ejectment, and that under such circumstances the recitals in the trustee's deed are conclusive, citing Seccombe v. **915 Roe, supra, and other cases. What was said by the court in the case last mentioned on this question was quoted from Mersfelder v. Spring, 139 Cal. 593, 73 P. 452, where plaintiff sued in ejectment and defendant appeared with a general denial. Plaintiff relied upon a deed executed by a trustee under a deed of trust. This deed contained recitals similar to these in question, and the court held that the deed passed the legal title and plaintiff had made out a case in ejectment. The court proceeded to add, however, that these recitals did not preclude the inquiry, in an equitable proceeding, into the fairness *763 of the sale or other matters which on equity principles might entitle the injured party to relief. [3] It is next urged by appellants that the clause found in the trust deed in question "that if the parties of the first part pay said judgment or cause said execution to be released from said property first described herein, then the said note and this trust deed become null and void," is to be so construed that the word "or" is to be read as "and." Usually, the copulative "or" implies an alternative, and in the instant case, should either of the contingencies occur, the note and trust deed become null and void. The rule which should guide the court in this connection is clearly set forth in 2 C. J. 1388, subd. 2, and is as follows: "Ordinarily these words are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant. In order to effectuate the intention of the parties

to an instrument, a testator, or a Legislature, as the case may be, the word 'and' is sometimes construed to mean 'or.' This construction, however, is never resorted to except for strong reasons and the words should never be so construed unless the context favors the conversion." [4][5] The question is primarily one of ascertaining the intention of the parties. The substitution of one of these words for the other is, in effect, affording relief upon the ground of mistake. In this case we cannot say that there was any mistake in the use of the word "or" as it appears in the instrument. On the contrary, the preamble to the trust deed indicates clearly that the release of the execution was of far more importance than the payment of the judgment. If the payment of the judgment was the prime and only consideration, why was mention made of the release of the execution, when it is elemental that the payment of the judgment would operate, ipso facto, to release the levy of the execution? In the matter of altering or modifying, by rules of construction, the solemn engagements of parties, our courts uniformly have acted with reluctance and hesitation, and it is only where, if the precise language were allowed to stand, it would set at naught the obvious intention of the parties, have they substituted, by construction, one word for another. See *764City of Corona v. Merriam, 20 Cal. App. 232, 128 P. 769; Robinson v. S. P. Co., 105 Cal. 526, 38 P. 94, 722, 28 L. R. A. 773. [6] Appellants contend that they are entitled to reimbursement for money they have expended in connection with the property in Yolo county. This was done, they claim, under the provisions of the trust deed. The court found that these expenditures were made subsequent to February 27, 1922, the date when the Los Angeles property was released from the levy of the execution, and at a time when defendants knew of said release. The findings of the court, which are sustained by ample evidence, are as follows: "That it is true that defendant F. J. Rickershauser paid moneys due on taxes and also moneys due under said agreement made by him with adjoining landowners, for alleged reclamation purposes, and also paid money to make said land productive; that each and every one of said payments so made by defendant F. J. Rickershauser were made by him without the consent, knowledge or authority of plaintiff or of her husband, J. B. Harker; and all of which payments were made subsequent to the 2nd day of March, 1922, and after the trust deed above set out had become null and void and of no force or effect; that it is true that defendant F. J. Rickershauser did not receive back any of the moneys so paid out by him directly from plaintiff or from J. B. Harker, but it is true that he did receive certain moneys as rent for

said property, which said moneys he never paid, nor offered to pay to plaintiff." It also appears that the rental from said Yolo county property, subsequent to the date last mentioned, and up to the date of the trial, was used to defray a considerable part of this expense. The release of the execution was placed on record in the office of the recorder of Los Angeles county on said date, and thereafter, as expressly provided in the trust deed, said instrument was null and void. If defendants made expenditures purporting to be authorized by said trust deed, they must be held to be voluntary in character, and not recoverable. 30 Cyc. 1298-A. It will be observed that the answer does not contain any specific prayer for relief in respect to this matter, nor is there any defense or counterclaim based upon such expenditures. [7] In the instant case, plaintiff, in making out her case, rightly ignored the trust deed, and simply proved the deed *765 to her from defendants. The trust deed was void, and had been from and after February 27, 1922, and a trustee's deed thereunder passed no title whatever. (Harker v. Rickershauser, supra, 94 Cal.App. at p. 760-765) Kachlon v. Markowitz, 168 Cal.App.4th 316, 334-335, 85 Cal.Rptr.3d 532, 08 Cal. Daily Op. Serv. 14,136, 2008 Daily Journal D.A.R. 17,005 (Cal.App. 2 Dist., Nov 17, 2008) a. Deeds Trustee of Trust, Nonjudicial Foreclosure, and the Duties of a

[4][5] Under a deed of trust containing a power of sale, like the trust deed securing the Markowitzes' promissory note in favor of the Kachlons, the borrower, or trustor, conveys nominal title to property to an intermediary, the trustee, who holds that title as security for repayment of the loan to the lender, or beneficiary. (See 1 Cal. Real Estate Finance Practice: **546 Strategies and Forms (Cont.Ed.Bar 2007) 4.3-4.6, pp. 196-199; 4 Miller & Starr, Cal. Real Estate (3d ed.2000) 10:2, p. 15.) The trustee's duties are twofold: (1) to reconvey the deed of trust to the trustor upon satisfaction of the debt owed to the beneficiary, resulting in a release of the lien created by the deed of trust, or (2) to initiate nonjudicial foreclosure on the property upon the trustor's default, resulting in a sale of the property. (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 677, 86 Cal.Rptr.2d 490 (Vournas ); see 4 Miller & Starr, supra, at 10:4, p. 23, 10:111, p. 340.) The beneficiary may make a substitution of trustee,

such as was done by the Kachlons in substituting Best Alliance, to conduct the foreclosure and sale. ( 2934a; see 1 Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont.Ed.Bar 2007) 2:13, p. 65.)

[6] When the trustor defaults on the debt secured by the deed of trust, the beneficiary may declare a default and make a demand on the trustee to commence foreclosure. (4 Miller & Starr, supra, 10:181, p. 552.) The Civil Code contains a comprehensive statutory scheme regulating nonjudicial foreclosure. Generally speaking, the statutory, nonjudicial foreclosure procedure begins with the recording of a notice of default by the trustee. ( 2924, subd. (a)(1).) FN8 After the expiration of not less than three months, the trustee must publish, post, and mail a notice of sale at least 20 days before the sale, *335 and must also record the notice of sale at least 14 days before the sale ( 2924, subds. (a)(1), (a)(2) & (a)(3), 2924f, subd. (b)(1); see Moeller v. Lien (1994) 25 Cal.App.4th 822, 830, 30 Cal.Rptr.2d 777 (Moeller ); see also 4 Miller & Starr, supra, 10:199, p. 623.) The sale and any postponement are governed by section 2924g. (Moeller, supra, 25 Cal.App.4th at p. 830, 30 Cal.Rptr.2d 777; Miller & Starr, supra, 10:201, p. 637.)

FN8. In 2006, Civil Code section 2924 was amended by, inter alia, incorporating subdivisions. Our case is governed by a prior version of the statute. As here relevant, however, the 2006 amendment contained no substantive change. We cite to the current statute in discussing nonjudicial foreclosure generally.

[7][8] The trustee in nonjudicial foreclosure is not a true trustee with fiduciary duties, but rather a common agent for the trustor and beneficiary. (Vournas, supra, 73 Cal.App.4th at p. 677, 86 Cal.Rptr.2d 490.) The scope and nature of the trustee's duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist. (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 287-288, 216 Cal.Rptr. 438, 702 P.2d 596 (I.E.Associates ); Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 827, 134 Cal.Rptr.2d 162.) Bliss v. Security-First Nat. Bank of Los Angeles, 81 Cal.App.2d 50, 183 P.2d 312 (Cal.App. 2 Dist. Jul 28, 1947)

Case with positive outcome.

Saterstrom v. Glick Bros. Sash, Door & Mill Co., 118 Cal.App. 379, 5 P.2d 21 (Cal.App. 3 Dist.,Nov 17, 1931) Action by K. Otto Saterstrom and another against the Glick Brothers Sash, Door & Mill Company, H. R. Coburn, doing business under the name and style of H. R. Coburn Lumber Company, and others. Judgment for plaintiffs, and defendant last named appeals. Reversed. [1] Mortgages 266 48(1)

266 Mortgages 266I Requisites and Validity 266I(B) Form and Contents of Instruments 266k48 Description of Property 266k48(1) k. In General. Most Cited Cases Deed of trust failing to name county in which property was situated held void because of defective and insufficient description. [2] Deeds 120 38(1)

120 Deeds 120I Requisites and Validity 120I(B) Form and Contents of Instruments 120k37 Description of Property 120k38 Certainty in General 120k38(1) k. In General. Most Cited Cases Deed must contain such description as will enable property to be readily located by reference thereto. [3] Deeds 120 40

120 Deeds 120I Requisites and Validity 120I(B) Form and Contents of Instruments 120k37 Description of Property 120k40 k. Reference to Maps or Plats. Most Cited Cases Parties to deed may describe property by reference therein to a map which, however, when taken together must be certain in respect to description. [3] Deeds 120 41

120 Deeds 120I Requisites and Validity 120I(B) Form and Contents of Instruments 120k37 Description of Property 120k41 k. Reference to Other Instruments or Records. Most Cited Cases Parties to deed may describe property by reference therein to another deed which, however, when taken together must be certain in respect to description. [6] Mortgages 266 48(1)

266 Mortgages 266I Requisites and Validity 266I(B) Form and Contents of Instruments 266k48 Description of Property 266k48(1) k. In General. Most Cited Cases Sale and all proceedings under deed of trust void for lack of sufficient description of property were likewise void. [7] Mortgages 266 354

266 Mortgages 266IX Foreclosure by Exercise of Power of Sale 266k352 Notice of Sale 266k354 k. Form and Requisites. Most Cited Cases Notice of sale under deed of trust held fatally defective for failure to contain description of property intended to be sold. Civ.Code, 2924. Action to quiet title to real property. Plaintiffs prevailed in the superior court and defendant H. R. Coburn alone appeals. Appellant contends that the evidence is insufficient to support the finding of the trial court that the above named plaintiffs, K. Otto Saterstrom and Anna O. Saterstrom, are the owners of the fee simple title to the property described in paragraph 3 of plaintiffs' complaint, etc. Plaintiffs relied wholly upon a record title. Their record title is based upon a sale of the property under a deed of trust. The deed of trust is dated September 1, 1927, executed by Claud Williams and Mary Williams to the Security Title Company, a corporation, and purporting to convey property described as follows: All that property in the County of ______, State of California, described as: Lot thirty nine (39) of Tract number Forty-five hundred eleven (4511) as per map recorded in Book 49, pages 4, 5, 6 and 7 of Maps, in the office of the County Recorder of said County. [1] Appellant contends that the deed of trust is void because of the defective and insufficient description of the property therein set forth. We think this contention must be sustained. [2] The rule is well established, as stated by this court in Scott v. Woodworth, 34 Cal. App. 400, 167 P. 543, 546: **To be valid on its face, a deed must contain such a description of the real property thereby intended to be conveyed as will enable the property to be readily located by reference to the description. It was further declared *381 therein that if the writing itself does not furnish the means whereby the description may be made sufficiently definite and certain readily to locate the property, then the instrument must be held void, since the imperfections of the description cannot be supplied through evidence extrinsic to the writing itself without running up against the positive mandate of the rule that a conveyance of real property must be in writing. See, also, Redemeyer v. Cunningham, 61 Cal. App. 424, 215 P. 83. [3] The rule is also well established that the parties to a deed may describe the property therein conveyed by a reference therein to another deed or map which contains a description, yet the deed and instrument referred to, when taken together, must be as certain in respect to the description, as a description contained in the deed itself. Donnelly v. Tregaskis, 154 Cal. 261, 97 P. 421; Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131; Redemeyer v. Cunningham, supra; Scott v. Woodworth, supra. See, also, Oatman v. Niemeyer (Cal. Sup.) 273 P. 567. **Tested by these rules, the conclusion is irresistible that the description above set forth is fatally defective and wholly insufficient to identify the real property intended to be conveyed by said deed of trust. This being true, the purported deed of trust was wholly inoperative and void. By examining the deed of trust, it will be readily perceived that, in describing the property, the name of the city and

county in which the property is located has been left blank. The deed of trust gives no information as to where the property is located, except that it is in the state of California. Neither is there any deed or map mentioned or referred to therein, from which it can be ascertained in which city and county the property is situated. It is true the description refers to map recorded in Book 49, pages 4, 5, & 6 of Maps, in the office of the County Recorder of said County. But it does not say what county. There are fifty-eight counties in California, each one of which undoubtedly has maps of tracks and subdivisions, etc., similar to the one referred to in the description in question.

**[6] The deed of trust being void for lack of a sufficient description of the property conveyed, the sale and all
proceedings under the deed of trust would likewise be wholly ineffective and void. [7] The notice given under section 2924 of the Civil Code is fatally defective because it contains no description of the property intended to be sold, but only refers to the record of said deed of trust for the description of the property.

2932. Power of sale A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security. Real-estate mortgage executed by one of joint tenants as enforceable after his death. 67 ALR2d 999. Decisions Under Current CC 2932 1. Generally Where the main obligation was barred by the statute of limitations and the lien of the mortgage thereby extinguished, the mortgagee as holder of the power of sale was without any interest in the land as lien holder, or at all, and the interest, once coupled with it, had ceased to exist; hence the power of sale was a naked power which terminated with the extinction of the interest. Goldwater v. Hibernia Sav. & Loan Soc. (1912, Cal App) 19 Cal App 511, 126 P 861, 1912 Cal App LEXIS 1. A power of sale contained in a mortgage is to be deemed a part of the security; it is a mere incident or appurtenance of the mortgage lien, agreed upon by the parties solely as a means of enforcing such lien, and can have no vitality or force when the lien itself no longer exists. Faxon v. All Persons (1913) 166 Cal 707, 137 P 919, 1913 Cal LEXIS 374. 5. Validity and Effect of Sale A power of sale given in a chattel mortgage or independent instrument must be exercised in accordance with the provisions thereof and as provided by law, and if not so exercised the sale is void and results in the extinguishment of the mortgage lien. Elmore Jameson Co. v. Smith (1939, Cal App) 34 Cal App 2d 609, 93 P2d 1063, 1939 Cal App LEXIS 151. Meaning of focused related to the issue of possession means that if litigated would keep the defendant in possession.