24 Colo. 382 | Colo. | 1897
delivered the opinion of the court.
The object of the action,—which is brought against the purchaser, at a trustee’s sale, of three lots situate in the city of Denver,—is to cancel the trustee’s deed, as against the plaintiff, the alleged equitable owner, on the ground that the same, as to her, is invalid. The trial was to the court without a jury, whose findings of fact and law were for the defendant, resulting in the dismissal of the action. From the judgment plaintiff has appealed.
The assignments of error are three in number: first, the
We premise by saying that the alleged errors of the court in admitting and rejecting testimony, argued by the appellant, cannot be considered, for no assignment of error has been predicated thereon, as required under Rule 11. It is more satisfactory, however, to say that even a casual inspection of the record shows that plaintiff was. not prejudiced by any such ruling of the court upon the evidence.
A brief statement of the facts at the outset will shorten the opinion, as well as more clearly bring into view the points urged for a reversal. Plaintiff was the equitable owner, of these lots and took a conveyance thereof subject to the incumbrance of a trust deed securing the payment of a five thousand dollar note. The maker of the note being in default, the trustee, on the proper request, and under the authority conferred by the trust deed, proceeded to advertise and sell the property. At the sale it was bid in for the beneficiary at |3,000, and that amount was indorsed as a credit on the note.
The plaintiff charges in her complaint that the sale was invalid because the newspaper in which appeared the advertisement of the notice of sale was not of the character contemplated by the trust deed; that the sale was not held at the time advertised, or conducted in the proper manner; that the property brought an inadequate price ; that there was no competition in the bids, and no Iona fide purchaser. At the trial, however, the irregularity as to the advertisement was abandoned, and the defects argued by counsel are under the other specifications.
Whatever rule we adopt here, the result is the same; as we cannot say that the findings are wrong. Indeed, as we view the case, there was no real conflict except as to the tone of voice in which the trustee cried the sale, and, as to that, if credence was given to Ms testimony, the court was abundantly justified in findmg that he did his full duty. Moreover, no claim is made by appellant’s counsel that there is not some competent evidence to uphold this particular finding.
2. Upon the legal propositions correct principles were applied. There was oMy one bidder at the sale, the note owner (through his agent) and the trustee’s deed was made to him. It is said, therefore, that there was no competition, and the highest and best price was not secured, and there was no bona fide purchaser. Neither position is tenable. The trust deed expressly provides that the owner of the note may become the purchaser. Neither the trustee nor the owner of the note can compel other persons to bid at a sale. If, therefore, no one but the owner bids, Ms offer, M the
3. The sale was advertised for ten o’clock A. M. It was about half past ten o’clock when the bid was accepted and the property declared sold. There is no satisfactory evidence (in fact none whatever) that any person intending to bid left before the sale began, or was misled into believing that it would not occur because the trustee did not begin reading the notice at the precise minute advertised. If there was any necessity for justifying the trustee in waiting for thirty minutes, the record furnishes it in the fact that several other like sales at the same hour and place were being cried, which, as appellant’s counsel upon another branch of the case contends, might tend to confuse bidders, and prevent information as to what was taking place. This act is claimed to be a departure from the notice of sale, but it is not. In the case of McGovern v. Union Mut. Life Ins. Co., 109 Ill. 151, this precise question was before that court. There the property was advertised to be sold at the hour of eleven o’clock, but the sale did not occur until between half past eleven and twelve o’clock. The claim there was the same as here, that the trustee must sell the property at the precise hour adver
“ The law does not recognize fractions of an hour or fractions of a day, and when a notice says that a sale of land will be made at the hour of eleven o’clock, the practical common sense of the language used is, that the sale will be made during the hour of eleven, or between eleven and twelve o’clock. This is upon the ground that eleven o’clock means from eleven until twelve,—in other words, it is eleven o’clock from eleven to twelve. It would have been impossible for the trustee to have made this sale precisely at eleven o’clock. That is but an instant, and before the trustee could have read two lines of the advertisement the time would have been gone. The law does not expect or require impossible things, and a moment’s reflection is enough to convince any reasonable person that the trustee, under this notice was not required to appear and sell precisely at eleven o’clock, but the notice gave him the right to appear at any time during the hour and make the sale.”
Approving this decision, see Lester v. Citizens’ Savings Bank, 17 R. I. 88.
4. The defendant offered no evidence as to the value of the property; that produced by the plaintiff is substantially harmonious. It was estimated at from 17,500 to $10,000. The plaintiff’s own witnesses, however, admitted that at the time of the sale, owing to the financial depression following the panic of 1893, it was almost impossible to fix any market value for lots situate as these are. There were no sales at all, except under foreclosures, and while the foregoing were the estimated values, the witnesses did not pretend to say that any such price could then have been obtained in the market.
Mere inadequacy of price is no ground for setting aside a judicial, or trustee’s sale, otherwise properly conducted. There is not a particle of eAddence in this record of any irregularity in the sale, unless the alleged inadequacy of price is such,
But if there was some evidence of any of these infirmities, plaintiff’s own conduct would be an insuperable objection to granting relief. Neither in her pleading nor at the trial did she-offer to do equity. There is no evidence at all that the property would probably bring more, if resold. Plaintiff does not offer to bid more, or to bid the amount of the note, or any larger sum, or claim that any other person would be likely to do so. N or does she offer to pay any of the costs of the former sale or the accrued interest or delinquent taxes. In fact, she admits that she was financially unable to do any of these things, or to purchase the property or bid at the sale. It may be, and doubtless is, unfortunate that she must lose her equity in this property because, on account of the stringency of the times, the property did not bring its full value. But this is no legal reason why the court should depart from the unquestioned rules of law that govern such cases and arbitrarily give to the plaintiff a further opportunity to protect herself, when even she herself does not claim that another sale would enable her to do so. R. R. Placer Co. v. Maxwell, ante, p. 87 (48 Pac. Kep. 815) ; 1 Pomeroy’s Eq. Jurisp. (2d ed.) § 393, note 4, and cases cited; Loney v. Courtnay, 24 Neb. 580 ; Mass. Mut. Life Ins. Co. v. Boggs, 121 Ill. 119; Duncan et al. v. Dodd et al., 2 Paige’s Chan. 99.
The very contingency has happened in this case that frequently occurs in such circumstances. Where one buys, as a speculation, an equity in property, hoping to sell on a rising market, to clear off the prior lien and make a profit, he necessarily runs the risk of a decline in values, the loss of
The court below, upon legal and sufficient evidence, having determined all of these questions of fact against the plaintiff, and the law being correctly applied thereto, the judgment should be affirmed, and it is so ordered.
Affirmed.