Lothrop v. Tracy

• Decision Date: 06 December 1897
• Citation: 51 P. 486,24 Colo. 382
• Court: Colorado Supreme Court
• Parties: LOTHROP v. TRACY.

51 P. 486

24 Colo. 382

LOTHROP v. TRACY.

Supreme Court of Colorado

December 6, 1897

Appeal from district court, Arapahoe county.

Action by Hattie E. Lothrop against Isabella M. Tracy to vacate a sale under a trust deed. From a judgment dismissing her action, plaintiff appeals. Affirmed.

Samuel H. Baker, for appellant.

A. B Seaman, for appellee.

CAMPBELL J.

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 court erred in rendering and entering judgment in favor of the defendant, and against the plaintiff, when under the law and the evidence, said judgment should have been for the plaintiff; second, the court erred in this: that the finding and judgment, and each of them, is against the law; third, the court below erred in this: that the finding and judgment, and each of them, is contrary to the evidence in the case. Though separately stated, as the rule requires, they are tantamount merely to an assignment that the decree is contrary to the law and the evidence.

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 $5,000 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 bona 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.

1. All questions of fact were determined against the appellant by the trial court, chiefly upon uncontroverted evidence, for only as to the manner of conducting the sale was the evidence at all in conflict, and that was not serious. As there was legal and competent evidence to support the findings, we might summarily dispose of this phase of the case by invoking the general rule prevailing in appellate tribunals, and refuse to disturb a judgment predicated upon such evidence, though there was a conflict therein. But the appellant contends that, inasmuch as some of the evidence was in the form of depositions, the foregoing rule is inapplicable, and that it is our duty in such a case to sift the evidence, with a view to determine on which side it preponderates. By far the larger and more material part of the evidence was oral testimony by witnesses heard in the presence of the court, and so the case does not, as contended by appellant, entirely fall without this rule, but, at most, is modified only as to the depositions. 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 his testimony, the court was abundantly justified in finding 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 only 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, his offer, in the sense of the term as used in the trust deed, is the 'highest and best'; and where a full and fair opportunity is given to bidders to participate, and there is no collusion, the requirement as to competition is fulfilled. Where only two bids are made, one may be 'higher and better' than the other, but it is not the 'highest and best'; that is, if we speak with the utmost precision, and accurately distinguish between the three degrees of comparison. It is only where there are three or more bids that one may be said to be the 'highest and best.' But, where the trust deed declares the trustee must sell for the highest and best price, this does not mean that...