Blockley v. Fowler

Citations

• 21 Cal. 326

Syllabus

<p>Where, at a sale under a power contained in a mortgage, the mortgagee becomes the purchaser indirectly by having the mortgaged premises bid in for himself, such sale is not therefore void, but only voidable on the application in equity of the mortgagor. The legal title passes by the sale.</p> <p>In an action of ejectment where the defendant claimed title through a purchase made at a sale under a power contained in a mortgage, the Court gave the following instruction: “If the jury believe, from the evidence, that M. B. McKinney, the mortgagee mentioned in the mortgage, made by A. M. Jaclcson to him on the fifteenth day of May, 1850, employed W. H. Fairchild, the purchaser, to attend said sale as his agent, and to buy in the property specified in said mortgage at said sale for the benefit of said McKinney himself, and that said Fairchild was not a bona fide purchaser, but purchased said property for said McKinney, and that no consideration was passed between said Fair-child and said McKinney, then the sale was void.” The j ury found for plaintiffs who had judgment: Held,, on appeal, that the instruction was erroneous in pronouncing the sale void on the supposed state of facts, and that, for this error, the judgment must be reversed.</p>