Loveland v. Clark

Elbert, J. 1. Hanna and Kountz were the trustees named in the deed of trust. While both joined in the notice of sale, Hanna alone made the sale and executed the deed to the purchaser. The claim is that the power was joint, that one alone could not exercise it, and that — 268 — the trust sale was void. Undoubtedly, where the grant is to two or more trustees, all must join in the execution of the trust, unless it should be otherwise provided. It cannot, however, be doubted that one of two or more trustees named in a deed of trust may execute the trust if by its terms the deed so provide. It is purely a matter of contract between the parties, and the terms of the contract are to govern. Whether or not the deed we are considering provides that either one of the trustees may act is a disputed question. John R. Hanna and Charles B. Kountz are named in the deed of trust as trustees, parties of the second part, ‘ with power to act severally, and each independent of the other.” While this provision appears among the recitals, rather than in the body of the deed, it is not for this reason to be rejected. The collocation is informal; but plain and unequivocal provisions, showing the intention, and in which is lodged the agreement of the parties, are not to be rejected or given less force because of informal arrangement. It is claimed, however, that this general declaration of power on the part of the trustees to act separately is qualified, not expressly, but inferentially, by the language used in the body of the deed. An examination of the deed discloses that in two separate paragraphs there is provision that the proceeds of sale “shall be paid to the second parties, or either of them.” In another paragraph it is provided “that the receipts of the said second parties, or either of them, shall be conclusive,” etc. The power of sale is as follows: “That in case of default of payment of said notes, or" any part thereof, or interest thereon, according to’the tenor and effect of said notes, then it shall and may be lawful for the said party of the second part, his heirs, assigns, or successors in trust, to sell and dispose of said premises, * * * and make, execute and deliver to the purchaser or purchasers at such sale good and sufficient deeds,” etc. There is nothing in the several provisions which we have mentioned authorizing — 269 — either of the trustees to receive the proceeds of sales, and to give receipts, etc., inconsistent with the general provision that they may execute the trusts severally. It is but a repetition of what has already been declared respecting their separate power. Neither is there anything in the selling clause inconsistent with this general provision. There is no repetition, as in the three clauses mentioned, of what has already been declared to be the separate powers of the trustees; and, upon this absence of reiteration, we are asked to infer an intention upon the part of the parties to the agreement to except the power of sale from the operation of the general provision declaring that the trustees may act severally. The maxim, expressio unius est exclusio alterius, is relied upon by counsel for appellants in support of this construction. We are unable to see that the maxim has any just or proper application. Eedeclaring of one or more powers that which has already been declared of all the powers in the deed can have no special force. The power to act severally, in the cases specified, is not strengthened by repetition, nor is the power to act severally in other cases weakened by the failure to repeat. If it is to be called enumeration, the most that can be said of it is that it is a special enumeration embraced within and covered by a broader and more general declaration, and no inference of any value or force can be predicated of it. It is not, however, in truth, a case of enumeration, within the meaning of the maxim, but of repetition, and we know of no rale of exclusion by repetition. In the interpretation of instruments, such a meaning is to be given to them as may effectuate, to the fullest extent, the intention of the parties. In the deed before us, John E. Hanna and Charles B. Eountz are named as trustees, “with power to act severally, and each independent of the other.” This is a plain provision, and covers all acts under the power. An exception, if intended, should have been expressed. Where parties — 270 — have expressed their intention, inference of a different intention respecting the same matter is not admissible. If it be permissible at all to subtract from what is expressed,- by an exception based on inference, the inference should certainly be of such clearness and force as to be certain and unavoidable. In the view we take, it is unnecessary for us to discuss the doctrine of the case of Smith v. Black, 115 U. S. 308; 6 Sup. Ct. Rep. 50, to which we are cited by counsel for appellant. 2. The second objection goes to the sufficiency of the description of the property in the notice of sale. The notice of sale describes the property verbatim as it is described in the trust deed, and the trust deed follows the description of the original deed from Clark to Love-land and Henry. There is no uncertainty in the general description. Three tracts of land of eighty acres each, and one of forty acres, are clearly designated by township, range, section and subdivision of section and quarter section. The difficulty arises from the exceptions made, namely: “ Excepting from the above the following described land, to wit: Beginning at the northwest corner of the southwest quarter of the northwest quarter of section' twenty-two (22), township- four (4) south, of range sixty-eight (68) west, in Arapahoe county, Colorado; running thence south six hundred and sixty (660) feet; thence east, to the west line of the Littleton road; thence north six hundred and sixty (660) feet, to the north line of said forty (40) acre tract; thence west, to the place of beginning; excepting, also, all such portions of the first-described lands as have been heretofore sold by the Denver Circle Real Estate Company; excepting, also, a strip of land one hundred and fifty (150) feet wide, running nearly north and south through the said land heretofore conveyed by the said Clark to the Denver & Rio Grande Railway Company; and subject, also, to ditches and ditch rights and public highways, and fifty-seven one-hundredths (57-100) of an acre conveyed to the — 271 — Denver & New Orleans Railroad Company,— lying and being situate in the county of Arapahoe county, in the state of Colorado.” The claim is that these exceptions leave the description of the property in the notice of sale fatally uncertain. This result is especially claimed of the exception, namely, “excepting, also, all such portions of the first-described lands as have been heretofore sold by the Denver Circle Real Estate Company.” In contracts affecting title to real estate, such imperfect descriptions are without excuse. Nevertheless, courts not infrequently have to deal with them. In the case of Pipe v. Smith, 4 Colo. 444, there was excepted from the grant “what lots have heretofore been conveyed, and what now remain in litigation, and the title yet undetermined by the probate judge holding them in trust for the occupants of the town-site of Golden City, under the pre-. emption laws of congress, for the use of the occupants thereof. It was there held that it was competent to make certain the subject-matter of this exception by evidence aliunde. It is said: “ An exception in á deed is the taking of something out of the thing granted which would otherwise pass by the deed; and, in general terms, it is said that it ought to be stated and described as fully and accurately as if the grantee were the grantor of the thing excepted, and the grantor in the deed were made the grantee in the exception. Whatever may pass by words of grant may be excepted by like words, and the same consequences attach ,to such an exception as would attach had it been a grant. 8 Washb. Real Prop. 431, 435. Having reference to the character of an exception in a conveyance, the same general rule as to the admissibility of parol evidence must apply. Where the subject-matter of the exception is described in general terms, parol evidence is admissible to give it effect as if it had been a grant.” This gives us the rule respecting such general descriptions, where they occur in deeds of conveyance, and where identification of the thing granted or excepted — 272 — is essential to pass or reserve title. In the case before us, as before noted, the description of the property is the same in the original deed and the trust deed as in the notice of sale, and all the parties to this controversy rely upon it as sufficiently certain to pass title. If the description in the deeds of conveyance can be sustained, it must be by appeal to the rule which we have cited. We do not decide, but we accept the sufficiency of the description in both the original and trust deeds as conceded. The appellants, however, challenge the description in the notice of sale as insufficient, while they rely upon its sufficiency in the original deed. If good in the conveyance, is there any ground for holding it fatally defective in the notice of sale ? The office of the description is the same in both cases, namely, identification. The purpose of the identification is different. In the one case, it is essential to pass title, and absolute certainty is necessary; in the other, its purpose is to notify the public of what is to be sold, and reasonable certainty is all that is required. The general rule is that ‘ ‘ no particular form of notice of sale under a trust deed is required by law. It is sufficient if the description of the land is reasonably certain, so as to inform the public of tbe property to be sold.” Newman v. Jackson, 12 Wheat. 570; Reading v. Waterman, 46 Mich. 110; Stephenson v. January, 49 Mo. 465; 2 Perry, Trusts, § 782. In the notice before us there is no uncertainty as to the locality of the land to be sold, or as to its general metes and bounds. The county, township, range, section and subdivisions of sections are all given, and any one can easily go to it and upon it. The exceptions leave it uncertain how much of the sectional subdivision described remains to be sold. This is not well. But is it fatal ? Measurably, it is uncertainty as to detail; the subject-matter of statement and explanation at the auction; a fact the general public might well understand and anticipate, as they would well understand and anticipate that any lands offered at the auction — 273 — would presumably be definite in amount and boundaries. As a matter of fact, there does not appear to have been any difficulty at the sale in so offering it. But it is insisted that bidders would nevertheless be deterred. It is not intended that the notice should be so complete and certain as to render any further inquiry or inspection unnecessary. The most accurate and elaborate description, giving distances in chains and feet, and designating the courses by the cardinal points of the compass, with degrees of variation therefrom, would leave the public uninformed, except generally, as to the location of the property; yet the sufficiency of such a description in a notice of sale could not be questioned. Without commanding the description in this notice, and assuming, as do all parties to this suit, that it is capable of being applied to the subject-matter, we do not see that it would necessarily fail to attract bidders, or in any other way prejudice the interests of the debtor as of course. Without any proof or probability that such was the effect, we are unwilling to presume such an effect in the absence of any fraudulent purpose or practice, and in the presence of the fact that the trustee adopted, in his notice of sale, a description of the property employed by all parties to the transaction. It is difficult to see upon what ground of equity and good conscience the debtor is entitled after sale to insist, as a ground for annulling the sale, that the description of his property in the notice of sale should have been more certain than that by which he took title, and by which he afterwards conveyed it by deed of trust for the purpose of securing the purchase money. If the notice of sale describe the property as it is described in the deed of trust, in the absence of any provision requiring more, we think it should be held sufficient. Reading v. Waterman, 46 Mich. 110; Stickney v. Evans, 127 Mass. 202; Association v. Boston, 114 Mass. 136; Robinson v. Association, 14 S. C. 148. 3. No authority is cited in support of the objection — 274 — that the property was not advertised for sale in parcels. The notice ran, “and so much thereof as shall be necessary to fully pay the balance due on said note, ” and, to this extent, indicated contingently a sale of less than the whole. But, independently of this, the power was general, “to sell and dispose of said premises.” As, in such case, it is for the trustee in good faith to exercise a sound discretion, and to sell the land as a whole or in parcels, it would seem to follow that he may exercise the same discretion about so advertising it. As it is held that a sale once made will not be set aside merely on the ground that the property was sold as a whole, when it was capable of easy division, it is difficult to see how the failure to advertise it to be sold in parcels could be made the basis of such a decree. 2 Jones, Mortg. 1857 et seq.; Gray v. Shaw, 14 Mo. 341; Singleton v. Scott, 11 Iowa, 589. “The true question to be considered is not so much whether there has been a literal and technical, as a fair and reasonable, compliance with the terms of sale, and a bona fide disposition of the property.” Horsey v. Hough, 38 Md. 139; Markey v. Langley, 92 U. S. 154. As a matter of fact, with the view of securing the best price, the property was first offered in parcels, and then as a whole, in pursuance of the announcement made by the trustee at the commencement of the sale. Criticisms of this proceeding, so eminently fair and just to all parties, need not be answered. Had the aggregate sum of bids for parcels reached the amount of the indebtedness and expenses before the last parcel was offered and sold, it would be necessary to consider the alleged “defect of power ” to thereafter offer and sell it as a whole. In the absence of facts making it applicable, we need not discuss the law. Counsel for appellants call our attention to, and lay stress upon, a certain agreement between Clark and McIntosh. Although it is.not strictly in the case, we have examined it. Its effect is to make Clark the agent of McIntosh in the matter of his bids. Had — 275 — this matter been alleged in the complaint as a ground of relief, it could not have availed. It was entirely competent for Clark to bid or not for himself, or, if he chose, to bid as the agent of another. It does not appear to have been, either in its intent or effect, so far as disclosed by the contract or the evidence, a combination to prevent bidding. Nor can any fraud in fact or in effect be predicated of it. No bidder was taken out of the field. Clark wanted his debt, not the property. McIntosh wanted the property, and Clark bid for him as his agent, and under his direction. It is true he did not bid more for the property than was necessary to secure it, but what bidder ever does? The original purchase price was $70,000. The indebtedness, including interest and taxes, amounted to $74,892.41. The amount bid by Clark under this agreement was $76,800. Clark subsequently transferred the property to the South Denver Eeal Estate Company, which McIntosh appears to have represented, for $70,000. We see nothing in all this that demands that the sale should be set aside. We have thus noticed all the leading questions discussed by counsel. Much is said about the strict rule of construction that obtains in cases of this character. Deeds of trust give more or less opportunity for fraud and unconscionable oppression, and sales under them are carefully scrutinized and questioned, to the end that it may be seen that the trust powers have been exercised fairly and in good faith, and that no substantial wrong has been committed. This is the extent of the rule. There is no search for technical irregularities upon which sales are to be set aside as of course. One who sells and conveys his land to another and takes back a deed of trust to secure the promised payment of the purchase price, as in this case, is entitled, upon default, to either his money or his land. If he enforce his contract fairly and without fraud, there is no warrant for sacrificing him on the altar of strict construction. Creditor and debtor stand in pari — 276 — statu; and their contracts, like other contracts, are to be construed fairly, and with justice to all'parties. The bill of complaint does not charge, nor does the evidence disclose, any fraud in fact. There is no suspicion of any want of fairness and good faith upon the part of the trustees, or either of them. Every reasonable effort appears to have been made to dispose of the property at the highest and best price for the benefit of all parties concerned. A fair price was obtained, all things considered. The preponderance of testimony is to this effect. There certainly is no ground for saying that the price was grossly inadequate. The mortgagors and mortgagee were all present and bidders at the sale, and found nothing to object to or criticise.- The lands in question, since the date of the trust sale, have largely appreciated in value. Hence this suit. In the absence of any fraud or substantial irregularity affecting injuriously the rights of the complainants, the purchaser at the trustee sale and his grantees should be protected in their title. The decree of the court below is affirmed. Affirmed.