Foge v. Schmidt

DOOLING, J.

Defendants appeal from a judgment setting aside a sale of plaintiff’s property to them at a trustee’s sale to satisfy an indebtedness under a third deed of trust. The court found that the property was worth at least $11,000 and that the total indebtedness secured by it did not exceed $6,600. The property was bought by the trustee for slightly under $700 for which, on the court’s finding, he secured property having a clear equity of at least $4,400. The facts thus support the finding that the sale price was grossly disproportionate to the value of the property. The court found that the plaintiff’s mother and a real estate agent who, the evidence showed, was acting for plaintiff, each made a bid of $750 for the property. Neither had the cash in hand and each asked for not over 10 or 15 minutes to go to a bank to secure it which the auctioneer refused. The agent had brought a blank check executed by his firm and the court found that there are many banks in the vicinity of the place of sale (in downtown San Francisco) which were then open for business and that the agent could have obtained the cash to support his bid if his request had been granted. On these facts the court found that the sale was unfairly conducted.

[683]

While mere inadequacy of price, standing alone, will not justify setting aside such a sale

(Stevens

v.

Plumas-Eureka Annex Min. Co.,

2 Cal.2d 493 [41 P.2d 927]) gross inadequacy of price coupled with even slight additional evidence of unfairness is sufficient to authorize setting the sale aside

(Winbigler

v.

Sherman,

175 Cal. 270, 275 [165 P. 943]; 25 Cal.Jur. 90-91).

We need go no further than the Winbigler case to support the finding of unfairness. In that case the owner, who had learned of the proposed sale 30 minutes before, asked the auctioneer for a reasonable continuance to procure the cash to make a bid. The auctioneer’s refusal coupled with inadequacy of price was held to make the sale voidable.