27 Colo. 349 | Colo. | 1900
delivered the opinion of the court.
In January, 1890, appellant Brewer executed and delivered to the appellee insurance company his promissory note, which he secured by deed of trust on real estate in the city of Denver, with power of sale vested in the trustee. This note matured in January, 1895. In March following he entered into an agreement with the appellees Harrison, whereby he agreed
Counsel for appellant contend that the acceptance by the insurance company of new obligors, and the stipulation that the original indebtedness should be paid in gold coin, constitute such a change in the character of the contract as to take it without the provisions of the statute regarding extensions of indebtedness secured by deeds of trust in force before the act of 1894 took effect, and that a foreclosure could only be had by an action in a court of competent jurisdiction. Literally, the term “ extension,” as employed in the statute, means “ an indulgence by giving time to pay a debt, or perform an
It was certainly the purpose of the legislature, in providing for extensions of indebtedness secured by deeds of trust, then in force, that such arrangements might be made without affecting the other terms and conditions of the contract thus changed. It also had in mind, as stated by counsel for appellants in their brief, “ the hardship that would be worked upon creditors, unless an extension could be allowed.” To make this provision effective, it certainly could not be limited to a mere extension, for the very object of the statute might be defeated unless the parties were permitted to arrange an extension on such terms and conditions as they might mutually' agree upon; so the provision of the statute authorizing extensions of indebtedness without affecting the terms and conditions of the deed of trust securing the indebtedness so extended, must necessarily authorize the execution of agreements evidencing such extensions as the parties thereto might agree upon, and such agreements would not affect the conditions of the deed of trust, except as modified thereby. For these reasons, the terms upon which the indebtedness secured by the deed of trust executed by Brewer was extended, did not affect the other conditions of that instrument.
The next question presented for consideration relates to the charge in the pleadings of appellants, and the evidence introduced at the trial in support thereof, that the appellees conspired to bring about the default in the payment of interest on account of which the foreclosure was had, with the view to cheat and defraud them out of the property in controversy. We do not deem it necessary to go into this ques
The important question necessary to consider is presented by the following facts: Appellee Needles was the original trustee. He was also the president of the insurance company. The deed of trust provided that in case of his absence from the state when his action under the powers and trusts conferred was required, that the cestui que trust might nominate and substitute any person as trustee in his place, and that such new trustee should thereupon, for the time being, become vested with the title to the mortgaged premises upon the same trusts, and with and subject to the same powers and provisions granted to the original trustee. Mr. Needles resided in Philadelphia. Acting upon the authority conferred by the deed of trust, and assuming that the condition existed which authorized its exercise, the cestui que trust appointed the trustee who made the sale of which appellants complain. At the sale counsel for the cestui que trust bid in the property for Mr. Needles, who became the purchaser, and to whom a deed was executed by the substituted trustee. In the answer of Mr. Needles and the insurance company, it is averred that this purchase was made for the benefit of the latter, and that the former held the title acquired at the sale in trust for the use of the company. Counsel for appellants contend that although another was appointed trustee to make the sale which is attacked in this action, that, nevertheless, Mr. Needles still bore such a relation to the property thus sold and appellants, that he was precluded from purchasing at the sale made by the substituted trustee. The rule is well settled that a trustee cannot become the purchaser of the trust estate. French v. Woodruff, 25 Colo. 339. At least, this seems to be the settled law in cases where the trustee acts in that capacity only as the agent of others, and has no interest of his own to also manage or control. The fact that the condition existed which authorized the company to appoint a new trustee in the place and stead of Mr. Nee-
On behalf of appellees it is claimed that appellants are not in a position to attack the validity of the trustee’s sale, for the reason that, although such sale might be voidable at their election, they cannot avail themselves of this privilege-, unless they offer to do equity, which, in this instance, counsel for appellees insist is an offer to redeem, that is, to pay the amount, with interest, which was realized at the trustee’s sale, and applied upon the obligation secured by the deed of trust. Appellants are not compelled to redeem from a sale which, at their election, is void. The sale not having been made according to law, appellees cannot insist, as a condition precedent to setting it aside, that appellants be required to comply with conditions before they can take advantage of the misconduct of the appellees. In other words, the foreclosure at their election being void, they have a right to treat the proceedings as though no foreclosure had ever been had. Lewis v. Hamilton, 26 Colo. 263.
It is also claimed on behalf of appellees, that neither of the appellants is entitled to maintain this action. This contention is based upon two grounds: (1) That the appellant Brewer, having disposed of his interest in the property to the investment company, has no further interest in the subject-matter of the controversy; and (2) that the investment company, although vested with -the interest of Brewer, subject to the deed of trust, is not vested with any right which entitled it to question the irregularity of the foreclosure proceedings. We cannot agree with either of these positions. The test is, have the appellants any interests to protect? The transfer of the interest of Brewer to the investment company in these premises, was prior to the fore
The final question to consider, is, whether or not a cause of action was stated or established against the appellees Harrison. They failed to carry out their contract made with appellant Brewer. Do the facts established by the pleadings, or does the evidence as to those which may have been controverted, establish a state of facts which excuse their failure to comply with the terms and conditions of their agreement with Mr. Brewer ? They admit that they failed to pay the instalment of interest which, under their agreement, they should have paid, and on account of which failure the foreclosure was had. They plead as an excuse for this action that Mr. Brewer had conveyed his interest in the premises to the investment company, thereby placing himself in a position where he was unable to' carry out the terms and conditions of his agreement with them. In his complaint appellant Brewer prays that the court determine his obligations in the premises, and fix the time within which he shall perform the same. The investment company does likewise. This must be taken to mean that each of the appellants offers to do equity, that is, comply with the terms and conditions of the agreement between the Harrisons and Brewer. Neither of the appellants seeks to avoid this contract in any way, shape or form. The Harrisons must do what they have
According to the agreement entered into between the Harrisons and Brewer, each assumed certain obligations. It is not necessary to enter into details or attempt to construe it, further than' to say, it is manifest from its terms and conditions, that after payment of the several sums by the respective parties as therein provided, any money realized, over and above the amount necessary to pay such sums, should be divided between them, or in the event each paid the amount which, by the agreement, each should discharge, that then the property should belong to the respective parties. As the terms and conditions of this contract have not been complied with, the parties thereto must now either do so, or accept the consequences flowing from a failure.
The judgment of the district court in its entirety must be reversed, and it is so ordered. The judgment of nonsuit should be set aside, and a judgment entered, holding for naught the trustee’s sale, and annulling the deed from the trustee to Mr. Needles. An account between the appellants and the appellees Needles and the insurance company, should be taken, to ascertain what sum or sums have been received by either of these appellees, which should be credited upon the indebtedness secured by the deed of trust, as evidenced by the extension agreement, as well as any other items which should be so credited, and an order made, directing that these appellees give the appellants credit accordingly. An account should also be taken between the appellants and the appellees Harrison; their rights ascertained under the agreement entered into between these parties and Mr. Brewer; and
Reversed and remanded.