De Martin v. Phelan

Citations

• 115 Cal. 538
• 47 P. 356
• 1897 Cal. LEXIS 470

Syllabus

<p>Mortgagor and Mortgagee—Fiduciary Relation—Negotiation for Purchase.—Where a mortgagee does not give to the mortgagor control over the property mortgaged, or where there is a mere decree of foreclosure and sale, without possession by the mortgagee, or the appointment of a receiver, or any threatening of proceedings therefor, there is no fiduciary relation between the mortgagor and mortgagee, affecting the right of the mortgagee to negotiate a purchase of the rights of the mortgagor in the property mortgaged.</p> <p>Id.—Advertisement of Sale—Purchase for Less than Value—Financial Distress of Mortgagor—Fraud or Oppression not Shown.— Where a mortgagee, having a mere decree of foreclosure and sale of the mortgaged property, after having advertised it for sale, postponed the sale for the purpose of negotiating a purchase of the mortgagor’s rights, and after a protracted negotiation and successively increasing offers, purchased the right of the mortgagor for much less than its real value, and at a much less price than he would have paid, if necessary to secure the property, which price was accepted by the mortgagor, the fact that it was accepted in ignorance that a greater price might have been obtained, and because of want of available means, and financial stringency, precluding the borrowing of more money upon the land, or the selling of it for more than the mortgage debt, and for fear of losing the property in case of a sale under the decree, it not appearing that the financial stringency was brought on by the mortgagee, or that he interfered to prevent a sale to another, or to prevent the obtaining of a loan, does not show fraud or oppression on the part of the mortgagee, for which the sale will be set aside.</p>