66 Cal. 281 | Cal. | 1885
The complaint is in “ ejectment ” ; the answer denying its averments, except the averment of the possession of defendant Leering. The plaintiff claims to deraign title through a deed of trust and a conveyance executed by the trustees. The deed of trust provides that, in case of default, etc., the parties of the second part (the trustees) shall, on application of the party of the third part—plaintiff, the creditor—sell the premises to them conveyed at public auction, to the highest bidder, for cash; and authorizes the trustees to establish “ as a condition of sale ” that the creditor (plaintiff herein) may bid and purchase thereat. The deed from the trustees to plaintiff recites that the sale was at public auction, to the highest bidder, for cash, and that the trustees did, “ as a condition of sale,” permit the plaintiff to bid and purchase. The deed of trust is silent as to the effect of such recitals in the deed from the trustees to the purchaser at the auction sale.
Appellants contend the deed from the trustees did not establish title or the right of possession in the plaintiff, in the absence of evidence dehors the deed of the facts of a sale to the highest bidder for cash, and of the establishment of a condition authorizing plaintiff to bid. To sustain the point thus made, counsel for appellant cites Jones on Mortgages, § 1830, where that writer says : “ When the validity of a sale under a power is questioned by the debtor, on the ground that the advertisement of the sale was not made in pursuance of the deed, the burden of proving a proper advertisement rests upon the purchaser or other party insisting upon the sale.” The only case referred to in support of the foregoing statement is Gibson v. Jones, 5 Leigh, 370, which was a bill in equity to set aside a sale by trustees. The deed provided that if the ancestor of the plaintiff should fail to pay a certain debt when due, the trustees,
The court of appeals reversed the decree dismissing the bill, on the ground that the trustees ought to have been before the court antecedent to a decree of dismissal on the merits. The court of appeals said: “ The bill charged that the sale of the trustees was made without advertisement, and called upon the trustees to answer that allegation. * * * The plaintiffs could not prove there was no advertisement. They made an effort to do it, by making the trustees parties; but their bill was dismissed without the trustees ever having been brought before the court.” The other defendants had answered, not denying the insufficiency of the advertisement. In this position of the case, the court remarked: “We cannot, then, take the advertisement as proved, but, on the other hand, we cannot take its existence as negatived, because those who were conversant of that matter (the trustees) are not before the court.”
The plaintiffs there could not, as under our practice, call the trustees as witnesses to be examined orally. They had a right to demand, however, and did demand, that the trustees make full discovery, by answer, of the facts with reference to the existence or non-existence of the required advertisement. The plaintiffs had not sought by attachment to compel the trustees to answer, nor had they taken proceedings for a decree pro confesso. As said by the court of appeals, a failure on the part of
None of the foregoing cases (except, perhaps, one of them) necessarily involve and uphold the proposition, that in an action at law brought by the purchaser from the trustees having the legal title, to recover possession, it is necessary for the plaintiff, as part of his case, to prove a strict compliance with the terms of the specific power contained in the deed of trust. Nor do they support the view that even in equity, when the bill is filed to set aside the sale, the burden of proving strict compliance with the special power is cast on the purchaser from a trustee with a legal title. The deed of trust now before us purports to convey the legal title to the trustee, and provides that in case the grantor shall pay the notes and interest, and all moneys laid out for repairs, taxes, insurance, etc., by the trustees, they will reconvey, etc. The deed transferred the legal title to the trustees (Koch v. Briggs, 14 Cal. 257; Grant v. Burr, 54 Cal. 298 ); the defendant retaining right to a reconveyance in case of payment, and to a sale as provided in case of default. Beal v. Blair, 33 Iowa, 318, was an action of ejectment. It was there decided that the recitals in the deed of the trustee were prima facie evidence of the matters recited, although the deed of trust did not purport to give the recitals such effect.
It was distinctly held in Illinois, that a deed from trustees holding the legal title passed the title, with or without notice on the part of the purchaser of a failure to comply with the specific requirements of the trust deed as to publication of notice, and until a redemption, such grantee could hold the legal title and set it up in ejectment, as in that action none but the legal title can be tried or regarded, the court saying: “ This is elementary, and requires no citation of authority in its support.” ( Wilson v. South Park Com’rs, 70 Ill. 50.) The report of the case does not show that the deed of trust made the recitals in the trustee’s deed evidence of the matters recited. Reece v. Allen, 5 Gilm. 236, holds that as the legal title is in the trustee, he conveys it to the purchaser—whether rightfully or wrongfully is not a subject of inquiry in an action at law to recover
In all cases, the legal title is in the trustees under the trust deed, if the deed purports to convey the legal estate; and, in such cases, a power of sale is a power appendant to the estate itself, and takes effect out of it. Trustees having the legal estate may, at law, sell, convey, assign, or incumber the same. The general power of the trustee to sell and incumber the estate is co-extensive with his ownership ; and this general power over the legal title is entirely distinct from the execution of a special power given in respect to the sale of an estate. Though a trustee may thus sell even in breach of the trust, a conveyance without consideration will not injure the cestui que trust, as the grantee who is a volunteer will hold upon the same trusts as the trustee ; and if the purchaser for a valuable consideration have notice of the trust, he will still hold the estate on trust. If, however, the purchaser have notice of the trust, his conveyance does not operate as a transfer to him of the special power of sale. He will have only the naked legal title; but this will draw to it the right of possession at law, on which he can recover, the cestui being required to appeal to a court of equity for a decree for a conveyance upon such conditions as may be just. (Perry on Trusts, 2d ed., §§ 602, i, k, 334, 218, 274.)
Judgment and order affirmed.
Ross, J., and McKee, J., concurred.
Hearing in Bank denied.