Thomas v. San Diego College Co. (111 Cal. 358, 1896)

Haynes, C.

This appeal is by the plaintiffs from two orders made after judgment, the first directing the immediate issuance and execution of an order of sale made upon the ex parte application of defendant Stough, and. 'the second an order denying plaintiff’s motion asking that the order of sale be recalled, or that its execution be postponed.

The San Diego College Company issued two hundred and ninety-eight bonds for the sum of one hundred dollars each, together with interest coupons thereto attached, and executed to the plaintiffs, as trustees, a mortgage upon several parcels of real estate to sécure the same, the most valuable of which is known as the “ College Campus,” upon which there was a large building. The above-entitled action was brought to foreclose said mortgage, and a decree of foreclosure was entered therein December 22, 1893. The findings set out the names Qf the holders and owners of said bonds, and the number held by each, from which it appeared that defendant 0. J. Stough was the holder of one hundred and fifty-seven of said bonds, one hundred and thirty-two of which he owned, and the remaining twenty-five he held as collateral security, the college company being the owner subject to the pledge thereof. Defendant Hannahs is the assignee of the college company, an insolvent debtor.

Prior to the commencement of the foreclosure proceedings, and also prior to the insolvency of the college company, defendant Stough became the owner of the mortgaged property, hut took it subject to said mortgage, and was, therefore, a necessary party to the foreclosure suit.

The decree directed certain parcels of the mortgaged property to be first sold, and on March 13, 1894, an order of sale was issued, and under it the sheriff sold all the property except that known as the “College Campus”; but this sale, made on May 21, 1894, did not realize enough to pay the interest due on the bonds, and the condition upon which the remainder of the property could be sold was thereby fixed, and the “College Campus” property was afterward advertised to be sold on July 2, 1894, but by direction of plaintiffs’ attorneys it was readvertised, and was offered for sale on August 1, 1894, and on that day L. L. Boone and 0. A. Trippet (two of plaintiffs’ attorneys), “on their own responsibility and not for their clients,” bid therefor three thousand dollars, but refused to complete the purchase because, as they claimed, the sale was made without legal notice.

On August 28, 1894, the first of said orders was entered in said cause, upon motion of Conklin and Hughes, attorneys for defendant Stough, but without notice to counsel for plaintiffs. The order recited that it appeared u to the satisfaction of the court that O. J. Stough, named as defendant in said cause, is the person most largely interested in the enforcement of said decree.”

A writ was accordingly issued that day, and counsel for plaintiff moved, upon notice to counsel for defendant Stough, to recall said writ and postpone the sale until the further, order of the court, upon the grounds: 1. That said writ was issued without their request, knowledge, or consent; 2. “ That it is against the interests of plaintiffs’ cestuis que trust to have a sale made of the mortgaged premises at the present time and 3.