*1 quence of an herein. If affirmance this affirmance means repudiation universally approved the incidental immunity power principle, uncovering with its crime implied express promise an of the court to dismiss punishment thereby adjust thereunder to one who is evidence, induced to turn state’s weakening, then it also means the paralysis, efficiency every if every police every prosecuting attorney, officer and other peace A the trial officer the state. sound discretion of guard power judge easily against That could abuse. strong regulating procedure criminal has hitherto been weapon fight against crime. cannot well afford We away. it to throw suggest I
In of the court view the decision youth this well itself recommend cannot do less than department years for commutation of executive responsi- hereby, my penalty. I on individual the death bility, make recommendation. such 13,589.
No. Cosmopolitan et National Hotel, Inc. al. v. Colorado
Bank. (40 245) [2d] P. 17, Rehearing January Decided. December 1934. denied 1935. *2 Mr. Edward L. Wood, Mr. Charles Ginsberg, Mr. Charles Rosenbaum, for plaintiffs in error.
Messrs. Bartels, Blood & Bancroft, for defendant in error.
En Banc. opinion Mr. Justice delivered tlie of the court. Hilliard This controversy grows out of the sale aof hotel large and theatre property pursuant to foreclosure of a first thereon, deed of trust given to secure an issue of notes bonds, variously and numerously owned, some of them by plaintiffs protest trial court their in error. Over error, the deed of in defendant in authorized payment if bid, in of its trust, sale, and to bid at the accepted, judgment given employ in the foreclosure outstanding in- which, course, bonds, suit based on all plaintiffs in to take title error, and cluded those contend that Plaintiffs error its name as trustee. provisions trust the foreclosure of the deed of under argued, required hence, cash, to be sale was consenting, authority, they was without strip them and involve contract them their against ownership joint their will. operate, provisions of trust deed Two justify nonconsenting think, to bondholders we assignments upon this contention. their of error based equality rights enjoyed goes The first to the *3 is the intendment of which that each bondholders, clear any or of other holder shall be free from the domination “for the common all the The deed of trust was of others. singular equal security use, of all and the and benefit and assigns, person corporate persons, or natural or their or present be time hereafter and from time to who shall at coupons any hereinbefore the of of the bonds and holder priority any preference, or distinction without mentioned, any other, so from otherwise, to of one bond as lien or of trust the deed have under this each bond shall that rights? right Two those were lien.” "What same and may payment, principal First, to have and be mentioned. ratably interest, Second, with all default ob holders. taining, enjoy benefits of to foreclosure accordance of with the of the deed trust. “In case of default terms lawful [*] said [*] premises the instrument said trustee, property [*] * recited, “it herein [*] to described, sell shall and and dispose * * may be * grantor right, or and interest of said and all the title * * public assigns auction therein, at his heirs or price bring highest will best the same for the provide make the trustee It not cash.” does complaint the hid -which made, bid. authority, specifically stated, trustee’s was to not sell, purchase, to justification sell for cash. No doubt there was apparently
for the foreclosure, was proper judg proceeding for the court in such a to enter unpaid ment the full amount of all bonds. When it ordering came to sale, however, the terms were neces sarily trust, be fixed in accordance with deed of disregard not in by majority The court thereof. could be moved nearly holders, them, all or all plan one, save to a other than that stated the deed of By protected, trust. of trust the deed each holder long and so as he invoked the terms that instrument enjoyment manner of his be could not denied at behest of at the of a like holders or instance court of' equity. “The of bondholders were measured securing their same, and, bonds deed and the trust any provision authorizing- absent therein bid for and bondholders, on behalf of the there was no power authority upon in the courts to confer such trustee. We think there can be no doubt cor rectness of Each has this conclusion. bondholder absolute to determine for himself, in case de quit, fault, whether he shall take his loss and or continue gamble; public to right if the is sold at sale, he has a proportion
to take his of the best bid can be compelled cash, secured in cannot to become an ’’ property. Judge owner anof undivided interest in the writing opinion.in McDermott, Werner, & Harris Equitable 10) (CCA Buck v. Trust (2d) Co., *4 35 F. 513. right upon “A bondholder has a contract, insist his eventually even if by insisting*upon he should fare worse together his right share a sale for cash, with the responsibility mortgagor look to the propor of for a deficiency. tionate in share He is bound to not be come an in owner common of a beneficial interest in a may many years trust which run on for which from stocks, he realize cash, bonds, or other securities that. eventually may he amount than the net Mm more less ’’ sold for cash. been had the
would have received Stormfeltz-Loveley 257 Mich. Co., Detroit Co. v. Trust Michigan took occasion to 242 N. 227. The 655, approve W. Equi holding & Buck Werner, v. in Harris supra, stating the court there had Co., Trust table ‘‘ ’’ rule, and added: and reasonable announced the correct con what their to receive “The bondholders are entitled provided compelled in to take be for, tract and cannot as a trust uncertain in beneficial interest lieu thereof a to contemplated inden outcome, time and not ” App: Emery-Thompson 9Co., O. v. In Beckman ture. was here and the sale bid as trustee, as 275, Beckman, conveyed prop Subsequently the trustee confirmed. erty. minority conveyance bondholders, some After such joined pro having preponderating holders in the not ceedings, sought confirmation order set aside.
to have the appli considered, the The circumstances court demed the * * * ‘‘ complaining bondholders cation, but said: The they Mr. disavow Beckman’s can, done, as have duty upon buy they can his behalf, and insist rata of the on their pro proceeds full their account to them for ’’ though price, him. it had been received as the bid Nay Aug support Lumber Co. below, In Atl. 843, 240 Pa. is Trust St. Co., v. Scranton opimon if on its own facts, sound there, cited. & especially disapproved Werner, Buck Harris v. in it supra, Equitable Trust Detroit Co. v. Co., Trust supra, Stormfeltz-Loveley regarded Co., should persuasive as case of different additional facts. provided appear It that the trust deed there does not cash, nor indi should be for that the sale carefully safeguarded had been so vidual bondholders dealing In we with a short, deed here. are the trust appear very which does not to have contract, definite Pennsylvania inquiry. That the de been the case precedent, admittedly or, as said there, without cision impression,” first “one of 1915A, 237, Cas. Ann.
67 any appears in event, v. Scranton Watson 845, in unwise proceeding Atl. 240 Pa. St. 87 a Co., 507, Trust in matter. a the same bondholder Nay Aug has been our attention case
In addition to Mortgage 116 Co., & v. Bond called to First Hoffman Kan. Neil, Nat. Bank 137 Atl. First v. 656; 164 320, Conn. County (2d) & T. S. Co. v. Chester 436, 528; P. Central 771; Sturges Knapp, 31 Vt. v. Co., 123, 9 Del. Ch. Atl. App. Chicago 63; Co., & 273 Ill. Trust
1; v. Title Straus 97; 227 N. W. 209 Ia. Farms, 856, Silver v. Wickfield Co., Deposit Hotel Omaha Kitchen Bros. Co. v. Safe study reveals of those eases 744, 254 N. 507. A W. Neb. distinguishing- their facts. mort- the court said: “The
In the Connecticut case exclusively specifically right gage to vested the enforce it ‘may pro- Thereupon in case default. the trustee lien and by notes, call said or to enforce the ceed to mortgage, fore- this either noteholders under said any proper proceeding, proper closure, other way remedy, most shall deem as said trustee court, ” protect is no There noteholders.’ effectual to said reviewing. equivalent provision we are record thought to all the cases with case, In the Kansas as appears nothing court, the trial sustain the required cash. be for to to that sale indicate requirement re- the absence of that Even laid all cases cannot be to fit marked that a definite rule down. compilers 1915A,
Of Delaware Cas. case the Ann. say attempted properly that “It was to set aside question grounds, being sale on no other raised to ’’ purchase for the of the trustee bondholders. purchased In Vermont case the trustees railroad property pursuant and thereafter foreclosure, bond company. bond- leased it another railroad Certain instance) (a majority sought have the holders in this purchase urging as the result of the aside, lease set “dry, trust,” naked their trustees held *6 only authority convey que was to the it to cestuis trust. acting The court held trustees were in accord- question ance with the terms of the deed of No trust. power to the of the hid on trustees to foreclosure was presented. Appeals provided:
In the Illinois case the trust deed may, any “That in case of default the trustee without part any action on bondholder, all declare bonds immediately proceed protect payable, may due and and by any may the trust effectual; means which he deem most property, any that in case of a foreclosure sale of the may purchase prop bondholder or the trustee bid and erty apply payment and the amount due on the bonds powers, bid; his that the duties and of the trus may by possession tee be exercised him ‘without or production any coupons proof of such bonds or ownership thereof’; that in all suits or transactions relat ing mortgaged property to the trust deed or the the trus representative tee is deemed to be the of the bondholders, necessary notify and that no case shall it be for him to any any party any bondholder or make bondholder a proceeding.” provisions,” suit or “Under these may said, “we think the trustee foreclose the trust purchase property deed, at the sale for the benefit of apply "the and bondholders, the amount due bonds, on the ’’ by payment as found decree, of his bid. mortgagee In the foreclosing Iowa case a a mort- gage on a defaulted debt. It held as collateral for the same debt bonds of an issue secured on other lands of mortgagor. mortgage This had been foreclosed, and debt, trustee bid including the full sum of all the bonded those held the creditor first referred to. What was sought litigation require in the was to the creditor to adjudged abandon his own foreclosure and to be to have paid been virtue of the trustee’s bid on the bond fore- saying closure. The court refused to so decree, that the mortgagee right remedy “had the to elect what if would ’’ pursue. inquiry provided, Nebraska in the of trust The deed ‘‘ upon trustee, as such trustee, foreclosure, that, coupons then and of the bonds holders the benefit of the authority unpaid outstanding further without and be- at such sale bid holders, from such direction property hold the take and purchaser come * * *, and the holders the benefit title thereto for authority power have full then the trustee shall to resell manage, operate control such price it deems for terms as such and on at such the same ’’ bondholders. the best interest supra, Stormfeltz-Loveley Co., In Detroit Trust Co. v. enjoy fore of individual bondholders where the *7 provisions deed of with the closure accordance upheld, in the was the court’s determination trust procedure provided for the which face of statute holding by adopted here, court hand the trial out of process being clause of the due the act contravened Amendment of the Constitution the Fourteenth corresponding provision of the and the United States fairly Michigan met Michigan case The Constitution. opinion, appearing quotations from the as the issue, opinion, cited, cases Of the make manifest. earlier in this Michigan only Wer and from considered, the case facts point. supra, Equitable The are Co., Trust ner v. inquiries and, trust, deeds of examined courts in those forth finding had been set of foreclosure that the manner adjudged language, lie with it did not as here, in clear say judicial bondholders some that because tribunal to depart the terms of instrument of their to from wished protesting, required security, noteholders, should be other essentially simple departure. adopt Most to sound. rights sought the contractual
It is to discount holding's protesting are their noteholders because equity. moving in in law nor is neither sound small. That urged plaintiffs it that he error, is one of the As to pending, purchased foreclosure was bonds while 70 impinge his below face value. Power to muela tbeir
at rights legal rights predicate of all can find no there. quite minority concededly as sacred lawful, are holders, rights think, as we occasion, no as the of others. There is rele- Let all be between them. for the court to determine gated is the source of their which to the instrument rights, opposing, security, representing like, as there, plainly enjoy according con- which was to to law that tracted in their several behalf. question thought the trial
Without what partook by wisdom, but, was done as said Mr. Justice sitting dealing Brewer, circuit, at the court was “with legal parties rights, have, as the contract, them, made upon although may party insisting that a believe probably, certaiidy, those or even bound to yet protect suffer loss, while he insists it must him in his insistence. There is no wide discretion vested in. permits the chancellor which him disturb contract rights.” Chicago Rys. & Merchants’ Loan Trust Co. v. 927. Co., 923, Fed. This is not a contest between Building & creditor, debtor and in Home Loan Associa Sup. tion v. Blaisdell, 398, U. S. Ct. 78 L. 231, Ed. error, cited counsel for defendant but is be enjoy tween like “com rank, creditors of contracted equal security” mon use, benefit the deed of provisions. trust and its posed The creditors, whether com majority wishing’ proceed of a in a manner con *8 by minority insisting ceived desirable, them to be or a on proceeding provides, equal as the deed of trust are before equal provisions law, under the of the deed of They trust. are not adversaries the sense that out regard equity may either, the desires of a court of re quire rights. Surety the other to waive contract National Sup. Co. v. 289 53 Coriell, 426, 436, 678, U. S. 77 Ed. Ct. L. problem justify taking 1300. Nor did the the trustee in a partisan required clearly attitude. Its course was out trust, lined in deed of and when conditions warranted part action on its it had but follow the blazed trail. part duty welcoming It was any of its no to incline a ear to beyond interest, and it should have had no concern authority. obligation the instrument of its considered, Its represented majority all the bondholders no represented more than it each bondholder. The warrant representation writing ambiguity. of its was a free from Only there should court, the trustee have and the looked, looking appreciated also instrument, to that should have power require- any protesting lack its bondholder to specific rights. waive thought
A is, further that what was done does not stopped amount to foreclosure. It was short of consum proceeding begun, pursuant mation. Before the power trust, set forth in the was in deed trustee possession management property. Not slightest change possesses has resulted. The trustee still manages property. Sale, so far as bene yet ficiaries are concerned, is to be made. Until then the they, beneficiaries must wait. In the meantime, not the already enjoyment in the of an allowance of $15,000 with definite reservation in the de compensated for more, cree nor the trustee’s counsel an $25,000 allowance of with like reservation, assume all inexperienced management experi the hazards of where management temptation enced failed. “The of the exer power patronage,” cise of said Chief Justice Taft, * * * management great “in the businesses under weight the court should prompting not be feather’s Brundage, court action.” Harkin v. 276 U. 36, S. 55, Sup. philosophy Ct. great 268, L. Ed. 457. of that jurist lodgment finds in our See, also, reflections. Inter national Trust v. Co. United Coal Co., 27 Colo. 246, 266, Campbell emphasized 60 Pac. Mr. where Justice futility equity’s attempt carry of a court of a on busi ness which the owner had been unsuccessful. Before gratuitous overlordship, trustee’s act and the inter position order, of the court’s beneficiaries, and each enjoyed legal right protection of them, to whatever *9 provisions afforded. One the deed of trust the definite of provision sale was to be on foreclosure the was that such judgment stand, If those who below were for cash. acquiescing’ protesting’, will or investment, made per- pleasure necessarily trustee, of the to await the have ponderous haps that end a moved controlled to and equity, manner for how in what as when, court of phrase, property it would In shall be sold. much the receivership. glorified nothing The aof short result approval. pursued not have our does course judgment further reversed, Let the order be opinion. proceeding's to this conform Bouck dissent. Mr. Campbell Mr. Justice Justice Mr. Justice Bouck, dissenting. court’s court reverses the lower of this for of the sale held under a decree fore-
confirmation mortgage. I of dissent. closure grantor remedy and failure “In case of default may provided it be VIII, shall and Article same as hereby being expressly cove- Trustee, said latvful for agreed the Trustee desire or re- should nanted public quire herein with the same shall act that the trustee dispose powers to sell and Trustee, (en premises described masse herein said may public separate parcels, think as said or in grantor best) right, interest of said title and and all the assigns public therein, at auction at the- heirs or his City House, of Den- door the Court Bast front premises, part Colorado, or on said ver, State specified sale, in the notice of such thereof, highest bring prices and best same will previously having public notice been weeks’ four cash, place advertise- given sale, of such time and general newspaper weekly circulation at in some ment, ” (Italics City published of Denver. are- in said that time mine.) *10 passage
The above from the deed of trust involved in obviously this foreclosure suit is made the corner stone of majority opinion. majority opinion pas- I In errs. this, think, the That sage The is not involved here. did resort to trustee power Instead, sale therein contained. the trustee equity. pursued foreclosure in the time-honored method of Compiled public act, Laws, 1921, The Colorado trustee seq., any §§5044 et would seem to forbid other method public is not named as trustee. where, here, power by being sale under a Foreclosure ministerial wholly equity. out foreclosure is case, thus of the principles equity jurisdiction—aud not The established inapplicable mortgage provision the quoted—must invalid above prevail.
therefore opinion majority ignores The that the sale was fact accordingly equity, judicial sale, and not under the supposed power.. consequently It falls into the error of talcing authority” principle the “strict discussed in 2 Perry, (7th page Ed.), q, Trusts and Trustees §602 g'overns express powers which ministerial sales under (where judicial supervision, there is no other supervision matter) applying judi- for that it to a (where equity cial sale the court of directs controls all). mortgage attempt in the interest of The does not judicial by any provision restrict foreclosure as to procedure or by as to manner of sale. The sale was not by trustee, through regular but was the its officer, the sheriff. Of course neither this court nor the lawfully lower court can make a new contract for parties inject provisions by into their new contract implication or indirection. entirely juris-
Now, since the matter rests within the equity, by any diction express not controlled agreement giving rise to a contractual as to manner of sale, stands to reason that the whole fabric arguments plaintiffs advanced in error equitable principles if properly must fall have been judged by applied. must be this has occurred Whether opinion says, majority sure, the record. at the trustee “to bid authorized the the lower court accepted, employ payment if bid, sale, its judgment given based on all out- suit in the foreclosure plain- standing course, included those of which, bonds, as trustee.” name title its tiffs in to tahe error, and quoting be shown can best the court authorized What itself: decree make the sale for not less “That the ex-officiosheriff *11 price upset of $1,000,000-for all of than the minimum or except entirety, paid property, cash, in said as an to be judg pro coupons, and a credit on the rata, and bonds *' * * plaintiff, be Trustee, of shall con the ment '** of the *; as cash and all de sidered cause, this and the holders of bonds and fendants to * * * may coupons and the sale, bid at the said ex- person persons so bid sell sheriff shall to the officio provided ding highest cash, be for such bid amount, upset price, both as above not less than the said and for equal in excess in event no bid stated; and of upset price plaintiff, by others, then be made the said said ex-officiosheriff shall sell Trustee, bid, plaintiff, than the less an amount not Trustee, to the for upset price, of its said than the amount and not more said Tru,stees judgment, bid, made, the said satisfied if judgment.” paid by the said credit on which I The record itself discloses certain facts believe understanding particular necessary case, to an of this are brevity recite them with the utmost and I shall therefore importance. with their consistent mortgage in a deed of trust executed The foreclosed comprising Cosmo- 1924 December of on Broadway politan Theater in the heart of Hotel and security for a bond issue. constituted Denver. It Cosmopolitan Hotel, Inc., has ac- Plaintiff error mortgagor’s mortgaged original quired title to the equity consequently an premises is the owner of redemption. plaintiffs The other in error are holders of par aggregating bonds value of which $34,000, more purchased price than a third was after the decree for sale was only amounting- entered and at a a little over per par unpaid cent The value. $1,480,- bonds total minority 000, and the bondholders own less than one forty-third per of the whole. The holders 97.7 cent objection in value of the bonds have raised no whatever, per per and the owners between and 75 cent cent affirmatively of the total bond value have authorized the complained plaintiffs acts in error. error, defendant in the Colorado National Bank of mortgage
Denver, was named in the as trustee for the upon payment bondholders, and default in the of bonds possession property, pursuant interest took express to the terms of the instrument, and with the express plaintiff Cosmopolitan consent of said in error By authority Inc. Hotel, that double the trustee is still possession operating- property. Proceedings duly instituted foreclosure, the trus- judgment tee, $1,683,214.67 resulted in favor of the trustee, and in connection with the a decree providing- was entered for a foreclosure sale. To that *12 judgment objection and decree no was made before the entry plaintiff thereof; the but thereafter in error acquired Schwartz, who his bonds after the decree had objection appli- entered, been made an in the form of an cation vacate to the decree and order of sale. No further objections were made until after the sale which was itself, July 1934, held on after the usual notice had been plaintiffs given. including The in error, Schwartz, then separate objections filed to confirmation the of sale. At hearing objections the on those there was no evidence tending proceedings except theory to the vitiate on the by plaintiffs purchase broached the in error the of property by the the trustee in accordance with the decree ipso illegal. suggestion was facto There was no prospect purchase fraud. No of a cash was indicated ex- cept he was Schwartz testified that after the sale “might willing A.ctu- $750,000. bid” $500,000, to bid or knowledge impending- though ally, the he had advance nothing. sale, he had bid express provision trust no in the deed of
There is property, in the bid is authorized to which the trustee pro- forbidding any provision A do so. it to nor is there property ap- authorizing bid in the trustee to the vision pears, herein- itself and will be in the decree however, quoted. cash sale no bidders the foreclosure At after thereupon property appeared offered, and was when the the aforesaid terms of with the the in accordance trustee, admittedly purporting of all to act on behalf decree, and property $1,250,- at entire in the bondholders, bid ap- nearly-three-fourths 075.04, or “upset” price, per proximately than the more cent price purchase to. this hereafter referred Of expenses. paid fees and $75.04, the amount of cash paid credit- the trustee’s balance, $1,250,000,was The compliance judgment, ing with the sum on the this decree. terms the foreclosure power lacked the that the trial court It is not claimed “upset” price fixing minimum an it exercised that, under This was in effect'a determination $1,000,000. shown, it would particular circumstances facts and permit inequitable sold below to be be the appointed this limitation one assailed minimum. No applied for a modi- lower unreasonable, expressly regard. con- Indeed, counsel fication in that upset price. fix had the that the court ceded clearly mortgagor and to beneficial to It minority bondholders. plaintiffs argument that, in error seems only sale, alternative no cash bid at first
if there is proceed another, on, and so sale, to another is to in the equity would received. This course cash bid is until a *13 present ideas of contravene the fundamental case principles. justice, Courts business as well as sound present judicial that, take notice under economic con- process may destroy ditions, such a well be destined to every vestige judge trial of material value. The had the advantage analyzing preliminary taking- of evidence and including practical probabilities the whole matter, actualities) (which turned out to be in connection with question getting cash bidders at the sale certainty any. after He, there would not be that position hearing to de- him, the witnesses before protect cide what and conserve the interests would best us, it is of all concerned. The evidence is before taken suggested unreliable, and it seems even that it is amply support findings. to sufficient nonappearance legitimate
With the of cash bidders the chancery properly play, function of came into in order property might conserved—according that the purpose mortgage—“for stated the common and equal security benefit use, of all” who hold the bonds.
It must be that remembered the trustee is not bound paid according see bondholders are full duty simply their contract as stated in the bonds. Its is apply security equally impartially toward payment yield equity all alike. Contracts must when gets body equitable into action. The whole remedies used in connection with receivers and is trustees the best proof thereof. governed by
Trustees for bondholders are the same equitable'principles Perry, trustees other trusts. (7th Ed.), pages Trusts and §§749, Trustees 1292, 1302, 760. question
The fundamental then recurs whether the properly dispensed equity lower court in this case. There my no doubt mind view of the facts the lower wisely problem proceeded worked out its in con- formity recognized equity. with rules Strongly supporting this following conclusion are the (Feb Mortgage eases: First v. &Bond Inc., Co. Hoffman ruary, 1933), 320, 164 116 Conn. Atl. 656; First Nat. Bank
78 (2d) Nay 1933), (April, 528; 20 P. 436, 137 Neil Kans. v. (1913) Aug 240 St. Co. Pa. Lumber Co. v. Scranton Trust County &T. Co. v. Chester 843; 87 Atl. Central S. 500, Sturges Knapp, (1910), 771; Atl. 123, 9 77 v. Co. Del. Ch. (1858), 31 1.Vt. apparently ap been has
The doctrine of those cases
Maryland,
proved
York
Nebraska, New
in Illinois, Iowa,
interesting*
jurisdictions.
discus
An able and
other
approved—though a deci
sion, wherein that doctrine is
mortgage
necessary inasmuch as the
sion thereon was not
there contained
authority
express
for a bid
the trustee
(Decem
Chicago
—is found
v.
Title & Trust Co.
in Straus
1933),
App.
v.
63.
Wick
ber,
273 Ill.
See also Silver
field
(1929)
97;
Kitchen Bros.
Farms
209 Ia.
N. W.
856,
1934),
(April,
Deposit
Hotel
v.
Co.
Co. Omaha Safe
Neb.
ment in The trustee J., 206, 42 C. may purchase mortgage at the trust in of a the nature discharg*eof his in foreclosure this is done sale when authority purchase is not trustee; duties as explicitly and where may very well instrument, in the conferred ’’ implied. expressly conferred In the case bar this at par- upon under the trustee the foreclosure decree duly ticularly safeguards observed. which were careful way of all the bondholders In no other could the interests reasonably protected. have been Emery-Thompson 9 Co., v. Even the case Beckman majority opinion, App. inis accord Ohio cited general in- there the sale with doctrine and affirmed being difficulty only point creating one volved, the minority right after confirmation as to arose security. cash for his to receive bondholder Many questions Some after confirmation. arise present affirmed, were if case would arise I think it be. should By affirming judgment vest would not herein this (in majority title the trustee and so the words of the opinion) joint ownership them in “involve against very their will.” The fact that the suit is now equity protect security would the bondholders. attempt effecting Whether there should anbe at a satis- factory exchange by incorporation of securities or re- organization equal rights majority with to both *15 minority or bondholders, otherwise; in whether, the event dissenting bondholders’ refusal to enter into such arrangement, they paid an should be the value of their in bonds or how cash, that value determined; shall be by whether there should be a sale the trustee whether or public private; questions it should be all these are in my opinion questions for the trial to determine court after confirmation of sale.
I believe that court this should therefore affirm the judgment questions and let those and other be dealt with by regular hereafter the trial in court order. Stormfeltz-Loveley Detroit Trust Co. v. Co., 257 Mich. by plaintiffs 242 655, N. cited 227,W. is the in error. How proceeding special ever involved a under a statute required which a certain notice that was omitted, page [at 662] the court said : notice “While no is neces sary respect proceedings with to incident usual necessary special sale, foreclosure type ly notice was under the proceeding provided by apparent act,” page for that reason set the sale aside. At 663 the upon principle frequently court touched that has re equitable legal in sulted substantial remedies for harsh namely express claims, the deviation from an trust where exigency contemplated by parties, an has arisen not by security may exigency or where reason of an be impaired entirely through much lost condi unusual tions. This, I is the situation think, here. plaintiffs thé main
But reliance of in error seems placed upon Equitable Werner, & Harris Buck v. (2d) utterly F. Co., Trust 513. The facts there differ from those the case at bar. The bid of the trustee was competition immediate with a substantial in actual and (who actively opposed a bidder confirmation by' cash bid trustee). Furthermore there was no sale fixed, and a bid on price protective or minimum upset was not for provided behalf the bondholders us. Moreover, in the one decree as before foreclosure give the trustee the there undertook as all cash bid competitive against to make a entry made after by parte and did so an ex order bidders, is in sense an The case no of the foreclosure decree. us here. the situation-that confronts authority for Co. Realty Investment and of Colorado case The recent coun- Newkirk, v. 32 P. is cited (2d) 830, Colo. 71, affirm- authority good sel for the defendant error In view the duties expressly herein. ing I think the mortgage imposed upon men- of the case correct and the doctrine contention is tioned this. applicable dissent. my are reasons for above opinion. concurs in this
Mr. Justice Campbell *16 13,607. No. v. People. Huffman 788) (39 P. [2d] 17, 1934. December Decided