Thomas v. San Diego College Co.

Citations

• 111 Cal. 358
• 43 P. 965
• 1896 Cal. LEXIS 588

Syllabus

<p>Foreclosure of Trust Mortgage—Decree of Sale—Duty of Trustees— Delay of Sale—Rights of Bondholder and Owner—Order for Execution.—Where a trust mortgage to secure bondholders is foreclosed by the trustees, and there is no provision in the decree for delaying the sale of the mortgaged property, it is the duty of the trustees to proceed without unreasonable delay to have the decree executed, and upon their failure to do so, it is the duty of the court, upon the application of a defendant who is a large bondholder and the owner of the mortgaged property, and interested in the execution of the decree, to direct that its execution he proceeded with.</p> <p>Id.—Position of Trustee—Control of Court.—Trustees who foreclose a mortgage for the benefit of bondholders have no personal interest in prosecuting the suit or in enforcing the decree, and are only instruments in the hands of the court, after bringing themselves within its jurisdiction, for the enforcement of the trust, and are peculiarly within the power and control of the court.</p> <p>Id.—Ex Parte Order for Execution—Motion to Recall Order.— Whether the court erred in granting an ex parte order, without notice to the trustees, or without the.ir consent, for the enforcement of the decree, upon application of a bondholder who is owner of the mortgaged premises, is not material, where the trustees are heard upon a motion to recall the order or to stay its execution; and if the latter motion is properly denied they are not prejudiced by the first order.</p> <p>Id.—Delay of Sale to Enhance Bids—Uncertain Combination of Stockholders—Enforcement of Degree.-—Where the condition of the country affecting the value of the mortgaged property was well known, and ample time has elapsed after the decree was entered to consummate any combination of stockholders to enhance bids upon the property, if such consummation were practicable, the uncertainty of any such combination or agreement being effected is too great to justify furth