67 Cal. 71, 8775, Scott v. Sierra Lumber Co.

Docket Nº:8775
Citation:67 Cal. 71, 7 P. 131
Opinion Judge:McKINSTRY, Judge
Party Name:PETER C. SCOTT, Appellant, v. THE SIERRA LUMBER COMPANY, Respondent
Attorney:George Cadwalader, for Appellant. Cope & Boyd, also for Appellant. E. B. Mastick, and C. A. Garter, for Respondent.
Judge Panel:JUDGES: In Bank. McKinstry, J. Sharpstein, J., Myrick, J., and Ross, J., concurred.
Case Date:May 25, 1885
Court:Supreme Court of California

Page 71

67 Cal. 71

7 P. 131

PETER C. SCOTT, Appellant,

v.

THE SIERRA LUMBER COMPANY, Respondent

No. 8775

Supreme Court of California

May 25, 1885

Rehearing denied.

Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.

COUNSEL:

George Cadwalader, for Appellant.

The delivery to the plaintiff of the trustee's deed without the payment of the bid did not make the deed void. It gave him the legal title to the property and power to maintain this action even though his title had been acquired by fraud or held by him in trust. (Clark v. Lockwood , 21 Cal. 220; 1 Perry on Trusts, § 334; Shortz v. Unangast, 3 Watts & S. 55; Canoy v. Troutman, 7 Ired. 155.)

Cope & Boyd, also for Appellant.

The effect of the trustee's deed as a transfer of the legal estate does not depend upon a proper execution of the trust in making the sale. If made in violation of the trust it may be impeached in equity, but not at law. (Canoy v. Troutman, 7 Ired. 155; Shortz v. Unangast, 3 Watts & S. 55; 1 Perry on Trusts, §§ 321, 334; Hill on Trustees, § 778.) The action is legal, and the mere fact that temporary equitable relief is asked does not change its character. (Natoma W. & M. Co. v. Clarkin , 14 Cal. 544; Code Civ. Proc. § 526; Pomeroy on Remedies, §§ 76-86; White v. Lyons , 42 Cal. 279; Leonard v. Rogan , 20 Wis. 540; Graves v. Spicer, 58 Barb. 349.)

E. B. Mastick, and C. A. Garter, for Respondent.

A trustee cannot directly or indirectly become the purchaser at his own sale, therefore the sale to the plaintiff was void as he bought for the trustees. (Tracy v. Colby , 55 Cal. 67; Wilbur v. Lynde , 49 Cal. 290; San Diego v. S.D. etc. R. R. Co. 44 Cal. 106; Cumberland Coal Co. v. Sherman, 30 Barb. 553; Davis v. Rock Creek L. Co. 55 Cal. 359; Scott v. Umbarger , 41 Cal. 410; Civ. Code, § 2229.)

JUDGES: In Bank. McKinstry, J. Sharpstein, J., Myrick, J., and Ross, J., concurred.

OPINION

McKINSTRY, Judge

Page 72

The power contained in the deed of trust recited in the complaint and findings, empowered the trustees in case of certain default, to sell at public auction for "gold coin" or cash. The court below found that the trustees offered the real and personal property (except two lots in Red Bluff) for sale," and struck off the same to the plaintiff, who, at their request and for them, bid the sum of $ 50,000, upon the distinct understanding that he was not to pay any money, or take or have

Page 73

any interest in the property, otherwise than in trust for them." It is said by appellant there was [7 P. 132] no evidence to sustain the foregoing finding. But there was evidence that the plaintiff bid off the property at the request of the trustees, with the understanding that he...

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