Brink v. Benton

MARKS, J. Appellant instituted this action to obtain judgment against respondents for the unpaid balance due on a promissory note which contained the following recital: “This note is secured by Deed of Trust to National Title Insurance Company, a corporation, of Los Angeles, California.” The complaint contained no allegation that the security for the note had been exhausted or applied towards its payment, or that it had become worthless. The trial court -found in favor of respondents and entered judgment accordingly. This appeal is taken on the judgment-roll. Appellant urges that since there is no evidence before us we cannot conclude, from the bare recital to that effect contained in the note, that it was in fact secured by a deed of trust. The answer to this is found in the findings of fact, wherein the trial court found that the note was secured by a deed of trust. The recent case of Bank of Italy National Trust & Savings Assn. v. Bentley, 217 Cal. 644 [20 Pac. (2d) 940], holds that an independent action on a promissory note secured by deed of trust cannot be brought by the holder of the note until the security is exhausted or is shown to be *277 without value. This ease settles all of the questions on this appeal against the contentions of appellant. Judgment affirmed. Barnard, P. J., and Jennings, J., concurred.