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


nsnt of the sale under any giver
state Of circumstances of which h'
alone is the Judge, and In selecting
the medium of publication"
"a Trustee cannot delegate tn
trust power of sale to o third per
son, especially II it Is q naked
power coupled with no interest A
sale executed by such a delegated
agent is void. Nor can one Trusted
delegate his power to co-Trustee.'
Perry on Trusts, Sec 779
Newton vs. Bronson, Kernar
593..
Hawley ys Jones, S Paige 4S7
Berger vs. Duff, 4 Johns Oh 3es
II Dean had been present hi
could not make the sale without
the presence of Burr.
Section 800 of the Civil Code o.
California, as amended In 1874
provides: "Where power is vest
ed in several persons all must unite
in its execution, but In case any
one or more of them Is dead the
power may be directed by the sur.
vivor or survivors, unless other.
wise prescribed by the terms OF the
power.n
This amendm ent was subsequent
to the case of Fogarty vs.. Sawyer,
20 Cal. :, 1t Is only the rule of the de-
cisions.
It seems to be we'll settled, that
a trustee does not unite in the act
unless he is present at the sale.
In Becksnkamp vs.. Refs, decided
first In the st. Louis Court of APP.
peals and subsequently affirmed by
the Supreme Court OF Missouri al
the April term. 1879, (see vol.
Cent Law Jour. p 39) the Court
held that where 'the sale took
place at the Court House, the auc.
tiOneer or crier standing In the
door, and bidders inside the hall,
the trustee was present at the
Court House door before the sale
began aud after 1t ended, but dur
ing the sale was not in the Court
House but In saloon on the oppo.
site side of the street and was not
present." the sale was void. The
Court said "that 1t was the duty OF
the trustee to be present during the
crying OF, the sale, to observe the
progress thereof, protect the inter-
ests Of parties, to reject fraudulent
bids made to Illustrate the sale, and
If necessary to adjourn the sale. II
the auctiODeer may lawfully make
sale in the absence OF the trustee,
and should, during his absence, ac-
cept q bid, and declare the person
making the same to be the pur.
chaser, and by proper memoran-
dunn In writing complete the sale,
it would be out of the power OF the
trustee to set the sale aside, and in
this way the trustee might substi-
tute the aucti0neer for himself in
the exercise of that very discretion
which the law declares to be a per.
sonal trust and cannot be delegat-
ed. The trustee should be presen
to sanction the acceptance OF any
bid by the aucti0neer before any
binding memorandum of sale can
be made"
In the case at bar it is conclu-
sively proved that Burr was not
present ut the sale. 1t 10 we'll set
tied that, when there are several
trustees. they constitute but one
trustee, and that trustee cannot
delegate his functions to his CO.
trustee; it therefore follows that
the sale was made without the
presence of any trustee, and that
the sale and trustees' deed are void
for that reason.
Tt is argued that the deed OF trust
does not require the trustees 10 be
present at the sale, but the law
does, and the law is q part OF the
Bronson VS.. Kenzie, l How. U.
8. Rep.
1t is admitted that Burr was
President of the Savings aud Loan
and Dean q Director of the
same corporation at the date of the
trust deed to them, and they were
both stockholders and officers at
the date of the sale by them as
trustees to the plaintiff.
The answer charges that they
with the corporation
plaintiff to enable it to purchase
the property for less than its value.
1t is in proof that the "Pico House"
was worth at the time OF the sale
the sum of $25. 900, that is the av.
erage fixed by the testimony.
Haley testifies that about the time
of the sale $4,000 was offered by
one party, 1t is clear therefore that
the $4,000 for which it sold was
not u fair price. The evidence fur
Their establishes the fact that the
bank lot was worth about $50, 900
and was sold for $4,000.
1t is also in proof that this prop
erty was sold at time Of great de-
preston in the price of property.
The fair presumption is that, if the
trustees had both been present,
they would have postponed the
sale to u more favorable time.
A striking difference between
the real value of the property and
the amount for which it Is sold
may furnish evidence Of Irregular
ity and may emphasize the Inn
portance of circuMstances by which
the inadequacy Of price was pro.
duced."
Thomas on Mortg., p 344.
The trustees being stockholders
in the corporation which purohas-
ed, were personally interested in
the plaintiffs obtaining the prop
erty at low figure, their interests
therefore were adverse to those Of
the debtor.
Under such circumstances 1t is
we'll settled that the sale cannot be
supported, especially II there is any
inadequacy Of price and the bsnefi.
ciary applies in reasonable time
to have the sale set aside.
"If one is Entrusted to sell
property by another and directly
or indirectly becomes himself the
purchaser at such sale, 1t is ipso
facto so far q fraud that any one
interested in it as o csstui que trust
49, xynid ~ NJ hto o1anftnu