Daily Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1876-1884, 1880-12-19

: been any bidders present at th
sale but the agents Of the plaintiff
, who offered neither the value O
; the property nor the amount 9th
debt.
II 1t was held in Fairfax VS. Hop
kins, 2 Cranch, G. c., p. 1874, tina
"a trustee appointed by y debtor t.
sell the mortgaged premises to thu
highest bidder is bound to see tina
the sale is fairly made and thai
there ia real competition, he is vi
much bound to take care OF the in.
terest of the debtor as of the cred.
itor, and If he finds only sham
competition he ought not to pro.
coed with the sale at the time, but
adjourn and give new notice."
The Court observes in the same
case: IA mere statement of the
facts of this case shows injustice.
That a creditor should have the
power OF approprlating to himself
at his own valuation the property
of his debtor strikes any one as
unjust in the extreme; yet this has
been the fact in the present case,
and may be the fact in many like
GASES, If, by mere compliance
with exterior forms, he can tie the
bandage OF law over the eyes OF
equity. In the present case, al
though the forms of the contract
may have been pursued SO that II a
stranger had been the purchaser
his title would have been protected
at law, yet, in substance, as be.
tween these parties, the contract
has not been complied with. The
land was to be sold to the highest
bidder, meaning unquestionably
the highest bona .fde bidder, and
unless there be at the sale more
than one bidder the sale cannot be
made to the highest bidder, because
where there is only one there can
be no comparison. The word
"highest' was used in order that
there should be no sale unless
there should be a real com petition.
Such Is undoubtedly the intention
Of the parties; and where the In
tentiOn of the parties has not been
fairly executed q court of equity
will interfere in cases where third
persons have not acquired legal
rights without notice OF the equi-
ty."
Another evidence of O want of
fairness In the sales arises from the
fact that no adequate notice was
given to the parties purchasers OF
the amount claimed for which the
property was to be sold. The Trus-
tees in their deed recite that the
note of the 18th of July, 1875. prin-
cipal and interest, was due; 1t re-
cites that the sale Is to be made to
satisfy this sum and certain dis
bursements and advances made
under the deed since Its execution,
without rsciting what these adj
vances were or the amount of
them, or for what made. The
Trustees had no power to sell ex-
cept for the debt and amount Sc
cured by the trust deed, and there
fore this amount should have been
stated In tho advertisement, which
was In the nature of complaint
In foreclosure and such complaint
which did not allege the amount
claimed or due would be clearly
dsmurrable under the allegation OF
the answer. The omission goes to
q question of fraud.
| 1.-THE notice of foreclosure must
c0ntein a statement ofthe amount
due thereon at the time of the pub.
lication."
Thomas on Mortg., p. 4O2.
The plea of the statutes Of limi-
tAti0ns in this case cannot be sus-
tanned, as the deed Of trust is di-
rect trust and not within the stat
utes.
Angel on Linn, Secs. 1877, 468,
1877 and note. 81
Perry on Trusts, Sec. SeS.
Vance vs. Bloodgood, Johns,
| CHI. Ill.
1.-THE statute Of Limitations does
not begin to run in the case Of an
express trust until the Trustee,
with the knowledge of the cestui
que trust, has discovered and repu-
dated the trust"
Miles Va Thorn, SO CAL, 1856.
This is on the ground that the
possession of the Trustee is not hos.
tile to that of the beneficiary. so
the possession of the mortgagor il
not hostile to but is the possession
of the mortgage.
Angel on Linn, Secs. 44o, 452.
"Ths statute Of limitations does
not begin to run against mort
gage out of possession as In favor
Of the mortgagor or his vendee,
even after the law day has passed,
until there Is some overt act or
open assertion of adverse title be-
cause the latter are presumed to
hold In subordination to the title
of the mOrtgagee."
Boyd W Beck, 20 Ala, 7O4, TIA.
There is no proof Of such overt
act in this case.
In Grant vs. Burr the Supreme
Court of this State held that the
statute of Limitations applied only
on the action and did not extin-
guish the debt.
1t IL urged that the note of July
16, 1875, was a payment and dis
charge of the loan ofplsintiff. The
trust deed in this case was for flu
ture advances and the note declares
that it is secured by the trust
deed.
The presumption therefore is
that 1t was given for future ad-
vance, or In rene wal of the former
loan.
"The renewal Of o note or bill Of
exchange secured by mortgage Is
neither payment nor discharge OF
thu liam of the n1OrtUap0O