Kennedy v. Dunn

58 Cal. 339, 1881 Cal. LEXIS 227

• Court: California Supreme Court
• Decided: July 1, 1881
• Docket: No. 7,295
• Status: Published

Opinion

Ross, J.:

The principal purpose of this action is to obtain a decree vacating a sale made under a deed of trust given by the plaintiff, to secure certain moneys loaned to her by the defendant Dunn.

On behalf of the plaintiff, who is the appellant here, several points are relied on as entitling her to the relief demanded. First, it is claimed .that no sufficient notice of the sale was given; second, that the trustee was not present at the sale; third, that the trustee bought at the sale; fourth, that the plaintiff was misled and deceived by the trustee as to the time of the sale; and fifth and lastly, that the property was sold at a grossly inadequate price.

Looking at the record, we do not find any of the points made, there sustained.

1. It appears that the notice of sale conformed to the requirements of the power, and was duly given. This was sufficient. (2 Perry on Trusts, § 602, q and r; Civ. Code, § 2258; Perry on Trusts, §§ 780-2; Jones on Mortgages, vol. ii, § 1854; Model Lodging House Assoc, v. City of Boston, 114 Mass. 133.)

2. The Court expressly finds that the trustee was present at. the sale, and there is no specification calling in question that finding. It was permissible for the trustee to avail herself of the services of an auctioneer in making the sale. (Fogarty v. Sawyer, 23 Cal. 570; Gillespie v. Smith, 29 Ill. 473; Hawley v. James, 5 Paige, 478; Cranston v. Crane, 97 Mass. 459.)

3. The trustee was also one of the cestwis que trustent. The record shows that the trustee sold to one Malone for the benefit of the cestuis que trustent, which the deed itself expressly authorized. (2 Perry on Trusts, § 6022; 2 Jones on Mortgages, § 1892; Griffin v. Marine Company, 52 Ill. 130.)

4. The Court found, from evidence which sustained the finding, that the plaintiff was not misled or deceived by the trustee as to the time of sale.

5. It is a familiar rule that inadequacy of price alone will not vitiate a sale. And if it would, it would not lie in the mouth of one whose willful and wrongful act causes the inadequacy, to complain of it. The Court below found that “at the time of the sale Edward Kennedy, who was then present and who was acting as the representative of plaintiff, forbade the sale, announced that the trust deed was invalid and worthless, and that any party purchasing would take nothing by the sale.”

We remark, in conclusion, that the circumstances detailed in the findings, and elsewhere appearing in the record, do not appeal very strongly to the conscience of the chancellor in favor of the plaintiff.

. Judgment and order affirmed.

McKinstry, J., concurred.

McKee, J., concurred in the judgment.