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

important Action.
Below we give the conclusion
OF Judge Howard's opinion in Saw
ings and Loan Society v. Pho. Pict
ct al.
1t appears by the stipulation o.
counsel at the trial, that, on thu
day OF the sale. Trustee Burr wal
not in San Francisco, and the evi
dence does not tend to prove that
the other Trustees, Dean, was pres.
ent at the sale.
No proof on behalf of the plain.
tiff was offered but the deed of tbs
Trustees. The deed of trust de.
clares: "And in event of q sale OIL
said premises, or any part thereof
and the execution OF deed there
for, under these trusts, then the re.
citals therein of default and publ.
cation shall be conclusive proof Of
such default and of the due publ.
cation Of such notice, and any such
deed or deeds with such recitals
therein, shall be effactual and con-
elusive against said party Of the
first part, his heirs, assigns aud all
other pereons." By no fair con.
struction can these stipulations be
held to extend beyond default oil
payment and publication, they do
not 20 to the absence Of the Trus.
tees from the sale.
1t 10 to be observed that the an.
swer charges fraudulent comb.
nation between the Trustees and
the plaintiff corporation to procure
the property for less than q fail
value. aud y fraudulent non-exscu.
ton Of the trust.deed. It will moi
be seriously questioned but that
under such circumstances, q court
of equity has full jurisdiction to
declare the sale void and vacate
the deed OF the Trustees.
1t will not require the citation oil
authority to prove that party
cannot stipulate Immunity for his
own fraud.
As a matter of logic and author.
ity all the Trustees should join in
the execution of a trust and super.
wise the sale. Mr.. Washburn in
his work on Real Property thus:
ain those cases where there is q
confidence in the Trustee, and this
is always deemed to be the case,
unless the instrument creating the
| trust authorizes the employment
of another, and delegation ol
power to such third person, the of.
fice and duty of Trussee cannot
be delegated except SO far as re.
lates to ministerial acts. when be
may employ an agent wi no governs
himself by his advice aud discre-
ton in the management OF the
trust, he being responsible for his
agents acts.n
2 Wash r. prop 4S9.
HWhere several are named al
Trustees they constitute together
one Trustee, and must execute the
trust together ia order to act at all
the act OF one having no effect; .
sale therefore by one of two Trus.
tees ia void, they canno,
act separately uQless the authority
conferred by the Instrument runt
to them or either of them.n
lib 4S4. Story Eq Sec 1880.
Ridgely va johnson IL Barb $50
A stranger may set up the de
fective execution OF the powel
when relied upon as title.
! Sinclair vs. Jackson 8 Cowsn
$40.
In Taylor vs Hopkins 10 I'll Az
As it was held: IA Trustee who il
EN- powered to sell and convey Ian,
to pay debts, 10 unable to delegate
the power to another, he is select
ed and confidence is reposed II
him by the parties, and he mus
execute the trust; he may emplo.
an auctioneer, but must be presen
and supervise and control the sal
for the best interests of the par
ties, and should AS far as he ma.
be able to prevent the sacrifice 0
the interests of either party"
In Graham VS. King, so Missouri
%, the Court held: "The office an
duties of Trustee are matters Q
personal confidence and he mus
exercise just aud fair discretion
. in doing whatever is right for tn
best interests Of the debtor. H
. must in person supervise an
/ watch over the sale and adjourn
, If necessary to prevent a sacrihc
of the property, and no one can d
! it In his stead unless empowers
I thereto in the instrument oOnfel
) ring the trust"
TO the same effect Is Bales '
Perry 81 Mo-, 451, in which tn
{ Court says: SIT is q familiar rule
( law that q special authority mui
. be pursued, that the office and dr
Q ties Of Q Trustees being matters
Q confidence cannot be- delegated b
Q him to another, unless an EXPIRE
! authority be conferred on him b
Q the Instrument creating the trua
+ he 10 incapaoitated from delega
( ing any duty, unless the former
. expressly. given, which involv
. the exercise of any discretion
{ Judgment, etc. 10 this end /
b must exercise his best judgment
!. to the mode OF Offering the props
" for sale, whether In pareels
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