387 P.2d 989 (Nev. 1963), 4625, Golden v. Tomiyasu

Docket Nº:4625.
Citation:387 P.2d 989, 79 Nev. 503
Opinion Judge:BADT, Chief Justice.
Party Name:Richard GOLDEN and Audrey Y. Golden, Appellants, v. Bill Yonema TOMIYASU, Kiyo Tomiyasu, Uwamie Tomiyasu, and Nanyu Tomiyasu, Respondents.
Attorney:Babcock & Sutton, Las Vegas, for appellants. Harry E. Claiborne, Las Vegas, for respondents.
Judge Panel:McNAMEE and THOMPSON, JJ., concur.
Case Date:December 23, 1963
Court:Supreme Court of Nevada

Page 989

387 P.2d 989 (Nev. 1963)

79 Nev. 503

Richard GOLDEN and Audrey Y. Golden, Appellants,


Bill Yonema TOMIYASU, Kiyo Tomiyasu, Uwamie Tomiyasu, and Nanyu Tomiyasu, Respondents.

No. 4625.

Supreme Court of Nevada.

December 23, 1963

Rehearing Denied Jan. 21, 1964.

Action to set aside a trustee's sale on foreclosure of a deed of trust. The 8th Judicial District Court, Clark County, George E. Marshall, J., entered judgment for plaintiffs and defendants appealed. The Supreme Court, Badt, C. J., held that mere inadequacy of price, without proof of some element of fraud, unfairness or oppression that could account for and bring about inadequacy of price was not sufficient to warrant the setting aside of trustee's sale on foreclosure of a deed of trust.

Reversed and remanded with instructions.

Babcock & Sutton, Las Vegas, for appellants.

Harry E. Claiborne, Las Vegas, for respondents.

[79 Nev. 504] BADT, Chief Justice.

This was an action to set aside a trustee's sale on freclosure of a deed of trust. We hold that mere inadequacy of price, without proof of some element of fraud, unfairness or oppression as accounts for and brings about the inadequacy of price is not sufficient to support a judgment setting aside the sale.

The Tomiyasus had executed a second deed of trust to a trustee to secure the payment of $13,564 to the predecessors and assignors of the First National Bank. This was subject and subordinate to a first deed of trust in the sum of $38,968.29. On default of the second deed of trust the trustee, pursuant to demand of the bank as beneficiary, proceeded to sell the property under the powers of the second deed of trust. A public sale was had, at which the Goldens became the purchasers for the sum of $18,025.73. The Tomiyasus, trustors, commenced this action in the court below to set aside the trustee's sale and to cancel and annul the deed executed pursuant thereto and tendered into court the amount of the purchase price and offered to pay any accrued costs. Such tender was made with the filing of the complaint on June 14, 1962, some 50 days after the sale.

The case was tried to the court without a jury. The court rendered judgment as prayed, setting aside the sale and annulling the deed and ordering the clerk of the court to pay to the Goldens the amount deposited by the Tomiyasus. This appeal followed.

[79 Nev. 505] The learned trial judge filed a written decision in which he reviewed each of the reasons advanced by respondents, why the sale should be set aside. Each of such reasons was rejected by the court as being sufficient in itself to require the setting aside of the sale, but stated that the reasons asserted and discussed in the opinion

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'do indicate that because of voluminous irregularities' the sale must be set aside.

Following the recitals contained in the decision, the court directed findings to be prepared, and signed the formal findings, including findings XVI and XVII which had not been mentioned in the findings contained in the written decision. The added findings are as follows:

'XVI. The court finds that the irregularities and confusion heretofore mentioned would have been, and was misleading, to prospective bidders, and would have discouraged, and did discourage, the attendance of prospective bidders at the sale, which could have, and did, result in the property being sold for an inadequate price to the injury of the trustors.

'XVII. The court finds that the trustee, Nevada Title Insurance Company, their agents and employees, in exercise of their power under the trust deed, was an agent of both parties and it was its duty on making the sale to act in good faith as an indifferent person, exercising good faith and a just and fair discretion in protecting the rights and interests of the trustors with all reasonable effort to make the sale beneficial to such parties by obtaining the full value of the property, or the best price possible, or a reasonable amount, but intentionally, or unintentionally, failed in its said duty in that regard in the manner hereinabove mentioned in these findings.'

Although the evidence is in conflict, there is substantial support of the court's finding that the land has a market value of $2,500 an acre. As five acres had been released from the deed of trust, there remained approximately 80 acres valued at a total of approximately $200,000. As against the inadequacy of the bid of $18,025.73 as compared with this valuation, the following facts should be noted:

[79 Nev. 506] (1) The deed of trust here involved was subject to a lien of a prior deed of trust in the sum of $38,968.29.

(2) Said first deed of trust called for monthly payments of $709.00 each.

(3) The Tomiyasus became delinquent in their payments on the first deed of trust to the extent that the First National Bank, beneficiary under the second deed of trust, was compelled to advance, up to the time of the foreclosure sale, the sum of $5,809.52. The total under the two deeds of trust amounted to approximately $57,000.

(4) The Tomiyasus were in continual default also in payments of the second deed of trust--the sum secured thereby having increased to $18,024.73 from the original indebtedness of $13,564.

(5) On October 26, 1961, the First National Bank, beneficiary under the second deed of trust, notified Nevada Title Insurance Company, the trustee, that the trustors were in default, in that the last payment on the principal had been paid in October 1960, and interest had been paid only to March 11, 1961. Accordingly, the trustee was instructed to prepare notice of default and election to sell in accordance with the provisions of the deed of trust. Copy of the bank's said letter was mailed to Bill Yonema Tomiyasu. The notice of breach and election to sell were duly recorded as required by the deed of trust. Publication of notice of trustee's sale was duly made and notice that the publication was running was mailed to Bill Yonema, said sale being noticed for March 13, 1962, at 10:00 a. m., at the front entrance of the Nevada Title Insurance Company.

(6) From September to November, 1961, Bill Yonema (the father) was absent in Japan and handed the management of the property over to his son, Nanyu, who continued such management but kept his father fully advised. Bill Yonema Knew of the delinquency, the imminence of foreclosure, the receipt of the notices from the truste, and they made various attempts to refinance the loan through other sources.

(7) The advertised sale was postponed on seven separate occasions, the final sale date being April 25, 1962. [79 Nev. 507] Each of such postponements was for the benefit of the Tomiyasus, who were making constant efforts to raise the necessary funds. Each

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postponement was proclaimed from the front door of the trustee's office. On none of these occasions did any other buyers appear. If on some of these occasions the trustee waited an additional ten or fifteen minutes before proclaiming the postponement, this cannot be termed even an irregularity. Its actual effect was to give further opportunity for bidders to appear.

(8) At the sale the agent of the trustee read the notice of the sale but when he came to the description, gave a general description of the four parcels without reading the lengthy description of the legal subdivisions, which description appears in the record as some two and one-half typewritten, legal-sized pages. All parties present knew exactly what land was being sold. He announced that, with the consent of those present, he would use that method. No objection was voiced. After reading the notice he explained that five acres had therefore been released from the...

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