11 Colo. 265 | Colo. | 1888
Lead Opinion
1. Hanna and Kountz were the trustees named in the deed of trust. While both joined in the notice of sale, Hanna alone made the sale and executed the deed to the purchaser. The claim is that the power was joint, that one alone could not exercise it, and that
2. The second objection goes to the sufficiency of the description of the property in the notice of sale. The notice of sale describes the property verbatim as it is described in the trust deed, and the trust deed follows the description of the original deed from Clark to Love-land and Henry. There is no uncertainty in the general description. Three tracts of land of eighty acres each, and one of forty acres, are clearly designated by township, range, section and subdivision of section and quarter section. The difficulty arises from the exceptions made, namely: “ Excepting from the above the following described land, to wit: Beginning at the northwest corner of the southwest quarter of the northwest quarter of section' twenty-two (22), township- four (4) south, of range sixty-eight (68) west, in Arapahoe county, Colorado; running thence south six hundred and sixty (660) feet; thence east, to the west line of the Littleton road; thence north six hundred and sixty (660) feet, to the north line of said forty (40) acre tract; thence west, to the place of beginning; excepting, also, all such portions of the first-described lands as have been heretofore sold by the Denver Circle Real Estate Company; excepting, also, a strip of land one hundred and fifty (150) feet wide, running nearly north and south through the said land heretofore conveyed by the said Clark to the Denver & Rio Grande Railway Company; and subject, also, to ditches and ditch rights and public highways, and fifty-seven one-hundredths (57-100) of an acre conveyed to the
3. No authority is cited in support of the objection
We have thus noticed all the leading questions discussed by counsel. Much is said about the strict rule of construction that obtains in cases of this character. Deeds of trust give more or less opportunity for fraud and unconscionable oppression, and sales under them are carefully scrutinized and questioned, to the end that it may be seen that the trust powers have been exercised fairly and in good faith, and that no substantial wrong has been committed. This is the extent of the rule. There is no search for technical irregularities upon which sales are to be set aside as of course. One who sells and conveys his land to another and takes back a deed of trust to secure the promised payment of the purchase price, as in this case, is entitled, upon default, to either his money or his land. If he enforce his contract fairly and without fraud, there is no warrant for sacrificing him on the altar of strict construction. Creditor and debtor stand in pari
Affirmed.
Rehearing
on rehearing.
We have carefully re-examined the grounds of our decision 'in this case in connection with the petition for rehearing, and the brief in support of - the same. We do not find that we have overlooked any maj terial fact in the case, or any principle of law that would require a change of our opinion. We do not1 find that we have overlooked the words used in the deed construed, or given them other than their plain meaning and effect. It is not believed that any authority cited is inconsistent with what is declared as the law in this case. On.the other hand, we find much that is confirmatory of the correctness of the views which we have expressed. In this connection we cite the doctrine of Moore v. Griffin, 22 Me. 354. Upon the matter of notice no stronger
Rehearing denied.