Algeri

Plaintiff brought this action against the defendants for the judicial foreclosure of a deed of trust and for a deficiency judgment if the proceeds from the sale were insufficient to pay plaintiff’s claim. The trial court granted this relief. Milton and Bertha Tonini appeal. Their sole contention is that the deed of trust in question was a purchase money deed of trust and that, under the provisions of section 580b of the Code of Civil Procedure, no prospective deficiency judgment should have been allowed.

The issue as to whether or not this was a purchase money deed of trust was not presented in the pleadings nor at the trial. So far as the Toninis are concerned, the complaint alleges that on August 5, 1952, they executed and delivered to plaintiff their promissory note for $14,102 payable on or before one year from date; that the note was secured by a deed of trust upon certain real property; and that no part of the principal or interest has been paid.

The Toninis did not deny the major allegations of the complaint. Their sole defense in their answer and at the time of trial was that there was no loan at all from the plaintiff to them; that the plaintiff had entered into an oral…