Carey v. Brown

Morrison, C. J.: On the sixteenth day of June, 1880, the defendant was indebted to one P. Bohl in the sum of seven hundred dollars, as was evidenced by a promissory note of that date, and for that amount, payable in six months, and to secure such indebtedness, the defendant executed a deed of trust to W. A. Fountain and A. Leonard on the certain lots of land in controversy, situated in the City of Sacramento. The deed of trust authorized the trustees therein named to sell the property in case defendant failed to pay the note when due, and provided that in the event of a sale, the recitals in any deed executed by the trustees, of default on the part of the defendant to pay the note, and of the application of the payee of the note for the sale of the premises, and of publication of the notice of sale required by the trust deed, should be conclusive evidence of the facts recited. The language is: “Any such deed or deeds, with such recitals, therein, shall be effectual and conclusive against said party of the first part (the defendant herein), his heirs, assigns, and all other persons; and the receipt for the purchase money contained in any deeds executed to the purchaser, shall be a sufficient discharge to such purchaser from all obligation to see to the proper application of the purchase money according to the trusts aforesaid.”

The property was sold in the presence and by the direction of Fountain, one of the trustees, and a deed was executed by both of the trustees to the purchaser on the twenty-second day of September, 1881; and the deed recites “that on the -day of July, 1881, the said promissory note having long prior thereto become due, and said W. K. Brown having made default in the payment of the principal and interest of said note, and the holder of the same having made application to the parties of the first part, requiring them (the trustees) to sell the whole of said real estate,and said parties of the first part [375]did, on the twenty-sixth day of August, 1881, cause notice of the time and place of sale to be published in the Sacramento Daily Record- Union, a newspaper printed and published in the county where said lands were situate, in which notice the seventeenth day of September, 1881, at the Court-house door in said county, at the hour of ten o’clock A. M., was fixed as the time and place when and where said premises would be sold at public auction, under the provisions of said trust deed. That said notice was published one time each week for three successive weeks, previous to said day of sale, in said newspaper. That on the seventeenth day of September, 1881, at the hour of ten o’clock A. M., at the Court-house door, in said county, the said trustees sold at public auction, for cash in gold coin, said land and premises to the highest bidder therefor. That at such sale the said party of the second part was the highest bidder and best bidder,” etc.