SMITH
v.
BLACK, Trustee.

*313 Mr. Samuel Shellabarger and Mr. S.S. Henkle for appellant.

Mr. Frank W. Hackett for appellee

*314 MR. JUSTICE BLATCHFORD delivered the opinion of the court. After stating the facts in the language reported above, he continued:

The decision of the special term on the merits, made by Mr. Justice Cox (MacArthur & Mackey, 338), went on the ground that Latta alone attended and conducted the sale, and Fuller was absent and took no part in it; and that Fuller did not ratify the sale by signing the deed, because he signed it without any consultation with Latta, and without any information as to the state of affairs at the sale, or any other information than that furnished by the recitals in the deed, which was presented to him by Smith and executed at his request. The judge added: "I think it proper further to remark, that I have seen nothing in the evidence involving any imputation or reproach against the fairness and honesty of the purchaser." It is stated that the affirmance by the general term was by a majority of the three justices, and proceeded on the same view as that held by the special term.

*315 It is urged, as one ground for setting aside the sale to Smith, that he had so conducted himself in regard to the trust property as to have become incapable of purchasing and holding it, as against the plaintiff; and that, being the creditor, he acted with Latta, in fixing the terms of sale contained in the notice, to the same extent he would have done if he had been his co-trustee, and wrote the body of the notice and selected the auctioneer, and was the organ of communication between Latta and Fuller in regard to the sale. We do not see anything in what Smith did in regard to preparations for the sale which disqualified him from becoming the purchaser. He was not agent or trustee for the plaintiff, nor was he attorney for the trustees or for Latta. He was an attorney and counsellor-at-law, and, in purchasing the note, had acted for his sister-in-law, and bought it with her money, as an investment for her, though taking the title to himself and acting as her agent and trustee in regard to the matter. Latta was selected as trustee by Stearns, and Fuller by Linkins. Fuller was unacquainted with the duties of a trustee, and Latta did not know him or where he was to be found. Smith insisting on a sale, the notice was prepared in accordance with terms agreed to by Latta, and was signed by him, and Smith undertook to find Fuller, and found him and obtained his signature to the notice. B.H. Warner, the auctioneer named in the notice, was the same person named in the bill, and had been employed by Mrs. Derby and the plaintiff to endeavor to sell the property or to raise money on it to pay the note held by Smith. We are unable to find any cause in these transactions, or in anything else developed in the case, which, under the most rigid rule, disqualified Smith from becoming a purchaser of the property. This court held in Richards v. Holmes, 18 How. 143, that, under a deed of trust like the present, the creditor for the satisfaction of whose debt the sale is made, has a right to compete fairly at the sale, and may become the purchaser. No fraud in fact is alleged in the bill or shown in the evidence, no effort to keep bidders away from the sale, or to have a surreptitious sale, no want of the usual notice of sale, nor any conduct on the part of Smith inconsistent with what was due from him, as a creditor, to Mrs. Derby *316 and the plaintiff. He waited nearly eight months after the principal of the note and the instalment of interest payable at the date of its maturity became due before he took measures for a sale. He allowed Mrs. Derby and the plaintiff to make every effort to sell the land at private sale, or to raise the money at a higher rate of interest than 6 per cent., to pay off the note. In July, 1877, Mrs. Derby wrote to him that she had tried in vain to get the money at a lower rate than 10 per cent., and asked him to have the debt extended at that rate at least until the fall, when she would sell the property if it brought no more than enough to pay the debt. In December, 1877, the plaintiff wrote to him that she had people working for her all the time trying to sell the ground, but she had failed so far to receive any offer which she thought more to her advantage than a sale under a foreclosure, and that she would sell the land to him at 50 cents per square foot, he paying enough in cash to repay his sister-in-law and the taxes on the property, and giving her his note for the rest at 8 per cent. interest, secured on the property. But the general taxes on the property were unpaid, and it had been sold for their non-payment, and there were special taxes against it, and Mr. Smith declined to purchase at the price asked. Prior to that, and in August, 1877, as his sister-in-law was pressing for some money, and in order to allow the plaintiff time to see if she could arrange the debt, he signed a note for $1,000 at 60 days, which Mr. Warner indorsed, and it was discounted and the money sent to the sister-in-law. This note was renewed for 60 days more, but, the plaintiff having accomplished nothing, proceedings for a sale were taken.

The question as to whether the signature "John F. Fuller" to the notice of sale, the original of which was produced in evidence, was genuine and made by Fuller, received some prominence in the proofs. Fuller's real name was "John E. Fuller." But he was called "John F. Fuller" in the deed of trust, and there is no dispute that he signed his name "John F. Fuller" to the deed to Smith, and to a paper he executed at the same time assigning to Smith his interest in the trustees' commissions. His testimony as to his not signing the notice *317 of sale amounts only to this, that he does not recollect signing it, and does not recollect the conversations and interviews with Smith, to which Smith testifies. His denial of the signature appears to be based on the fact that his name is John E. Fuller; and his ultimate answer is that he will not swear he did not sign the notice. Smith testifies positively that he saw him sign it, and gives details and circumstances. The evidence satisfies us that the notice was signed by Fuller. It also appears that the deed to Smith was fully read to, and understood by, Fuller before he signed it. The recitals in the deed, which were true, gave Fuller all the information it was necessary he should have, as a basis for his signature to it.

We come now to consider the alleged inadequate price obtained at the sale. In May, 1872, Stearns sold the land to Linkins at 45 cents per square foot. In April, 1873, Mrs. Derby purchased at $1 per square foot. At the time Mrs. Derby purchased, and during the summer of 1873, speculation in real estate in the neighborhood of this land was rife, and prices were high, but in the fall of 1873 came a revulsion, and a depression of prices, which continued until after the sale in this case. In March, 1880, Smith sold a little over 15,000 feet of the land to Page for $14,200, or about 92 cents per square foot. The price which Smith paid was a little over 35 cents per square foot. But, in view of the efforts which had been made by the plaintiff to sell the property or to raise money on it, and of all the facts of the case, it cannot be said that the property sold for less than it could have been reasonably expected to bring at public auction at the time. Smith made the first bid, at $4,500. The bidding reached $6,000 by $500 bids, and then either $6,500 or $6,900 by $100 bids, every alternate bid being Smith's. The $6,500 bid or the $6,900 bid was made by Mr. John W. Thompson. Then Smith bid $7,000. Latta, who was present, endeavored to induce Mr. Thompson to bid more, but he would not. Shailer, the person who visited Washington by the plaintiff's desire, was present at the sale. It was held at the usual hour of the day for such sales. The evidence shows that Smith immediately offered the property at his bid to several persons, including Mr. Thompson, but no *318 one would take it. We see no ground for setting aside the sale because of inadequacy of price. The bill in the case was filed a few days after Smith had sold to Page. The period of depression had passed. The price had gone up again to nearly what Mrs. Derby had paid. But, the fact of depression in value is no ground in itself for not upholding a sale under the trust deed, nor is a subsequent rise in value a ground for setting aside the sale. Those who speculate in real estate on credit take the risk of depression in value at the time the credit expires, and those who buy for cash in time of depression are entitled to the benefit of a subsequent rise in value.

The principal question discussed at the bar was the validity of the sale in the absence of Fuller. Latta, the other trustee, was present. No objection at the time of the sale to the absence of Fuller was made on behalf of the plaintiff, although she actually knew of the time and place of sale, and in consequence sent Shailer to Washington, and he attended the sale. The question of the necessity of the presence of a sole trustee at a sale under a deed of trust like the present was before the Circuit Court of the United States for the District of Columbia, in 1838, in Connolly v. Belt, 5 Cranch 405, on a bill filed by the grantor in the deed of trust to set aside a sale under it. It was contended that the sale was void because the sole trustee was not present, though he was represented at it by an agent. The objection was not made at the sale, but was raised by a bill filed by Belt, the debtor, against the creditor, and Semmes, the trustee, and the purchaser. The court was held by Chief Judge Cranch and Assistant Judge Morsell. The case of Heyer v. Deaves, 2 Johns. Ch. 154, was cited to it as holding that, under a statute of New York, which required all sales of mortgaged premises, under a decree, to be made by a master, a sale was invalid which was made by a competent agent of the master, in his absence. Chief Judge Cranch says, in delivering the opinion of the court: "Neither that statute nor that case is applicable to the present case, which is a sale under a common deed of trust. The time, place, terms and conditions were such as were deemed by the trustee most for the interest of all the parties concerned in the said sale, as appears *319 by the answer of the trustee; and a sale made by an agent of the trustee, according to the terms and conditions, and at the time and place prescribed, is a sale by the trustee, there being no law requiring him to be personally present at the auction. No objection having been made by Mr. Belt, or his friends, on account of the absence of Mr. Semmes, the trustee, who was represented by Mr. C. Cox, as his agent, at the sale, and their suffering the sale to go on, is, I think, a waiver of the objection, if it would have been otherwise valid. But the objection, in itself, is of no avail" We are not advised of any decision since that one, in the District of Columbia, holding to the contrary, until the one now before us. It was made nearly 50 years ago, and has probably been followed in some cases as a rule of property, which it is; and the fact that, in view of it, no statute has been passed by Congress requiring the personal presence of a sole trustee, or of both trustees, at a sale under a deed of trust, is persuasive to show that the absence of a sole trustee, or of one of two trustees, ought not to be held, of itself, to vitiate a sale. Where there is a statute requiring a thing to be done by a known and responsible public officer, it may well be held that he must do it in person. But in a sale under a deed of trust like the present, where private persons appoint other private persons, their heirs and assigns, to make the sale, then if the notice of sale is given, and the deed is executed, by the sole trustee or the two trustees, and the sale is fairly conducted, and no ground otherwise appears for setting it aside, the mere fact that the sale is not attended by the sole trustee, or that it is made in the absence of one or even both of two trustees, is not alone a sufficient ground for holding the sale invalid. The absent trustee or trustees may, after the sale is advertised, become ill, or be called to a distance, not to return for some time. The creditor has rights as well as the debtor, and where, in the case of two trustees, the sale is conducted, as in this case, in pursuance of a notice signed by both of them, conforming to the deed of trust, and previously publicly advertised, and one of them is present, and the sale is fairly and properly made, and the proceedings under the deed of trust are otherwise regular, and both of the trustees afterwards *320 execute such a deed as was executed in this case, there is no ground of public policy or private right which requires it to be held that the absence of the second trustee vitiates the sale.

After the sale, and on the day on which the deed was executed to Smith, he made a settlement with Latta for the purchase. He elected to consider it as one wholly for cash. This he had a right to do, notwithstanding the terms of sale. No duty of the trustees or of Smith to the plaintiff was violated by this course. The amount of the note and interest was $5,739.25. The expenses of sale, commissions, taxes, and interest on them were put down at $2,086.78. Deducting this from the $7,000 left $4,913.22 to be credited on the $5,739.25, and that amount was credited on the note that day, leaving a deficiency of $826.03. Even if something less ought to have been charged against the $7,000, leaving the deficiency less than $826.03, it does not appear that there was not a deficiency.

The decree of the court in general term, made March 20, 1882, is reversed, and the cause is remanded to that court, with directions to reverse, with costs, the decree of the court in special term made April 12, 1881, and to dismiss the bill of complaint, with costs.

MR. JUSTICE FIELD, dissenting.

I am unable to assent to the judgment of this court, as I do not agree to the conclusion reached on the question of fact as to the previous concurrence of Fuller, one of the trustees of the property, in the notice of sale. He testifies that he never authorized the sale; never heard of it; nor did Smith ever speak to him on the subject until two weeks after it had taken place, when Smith came to his house and got him, then sick in bed, to sign the deed. He also testifies that the signature "John F. Fuller" appended to the notice of sale is not in his handwriting.

Under these circumstances I cannot but conclude that Mr. Smith is mistaken in his recollection, and that he has confounded Fuller's subsequent assent to the execution of the deed with a supposed previous assent to the notice of sale.

*321 Fuller's ratification of the proceedings by joining in the deed does not remove, in my judgment, this objection, as it is evident that it was executed in ignorance of all the circumstances under which the sale took place. I agree with the court below that, "if a trustee can ratify the acts of his co-trustee, it can only be upon consultation with him, and upon full information as to all the facts;" and it is clear that this information was wanting in the present case.