knowledge of the foreclosure or assignment of the certificate of sale."

Sec. 647.

Deeds of trust to secure debts. A deed of trust may be foreclosed after the death of the trustee and his successor by a bill in equity, although no other trustee has been appointed. Waughop v. Bartlett, 165 Ill. 124 (46 N. E. Rep. 197). Under Mo. Rev. Stat. 1889, § 7103, a conveyance by a trustee in a trust deed is prima facie evidence of default in the payment of the secured debt. Hume v. Hopkins, 140 Mo. 65 (41 S. W. Rep. 784). Where a deed of trust containing a power of sale, provided that in case the trustee should fail or refuse to act the beneficiary should have power to appoint a substitute trustee, it is held that a court of equity may appoint a trustee upon the death of both the original trustee and the beneficiary; and the makers of such deed cannot resist appointment on the ground that the debt is barred by the statute of limitations, where the delay constituting the bar was caused by their wrongfully enjoining the original trustee from selling under the power. Converse v. Davis, 90 Tex. 462 (39 S. W. Rep. 277). For the construction of particular trust deed, see International Trust Co. v. Upton Grove L. & Imp. Co., 71 Minn. 147 (73 N. W. Rep. 716).

Sec. 648. Sale under deed of trust. A demand of the amount due under a deed of trust need not necessarily precede a sale thereunder. Jopling v. Walton, 138 Mo. 485 (40) S. W. Rep. 99). Upon a purchaser's failure to complete his purchase the trustee may readvertise the property and sell it again. McClung v. Missouri Trust Co., 137 Mo. 106 (38 S. W. Rep. 578). In Missouri it is held that a conveyance by a trustee in a deed of trust, though in breach of his trust, extinguishes his power, and when brought in question in a court of law vests the legal title in his grantee. Hume v. Hopkins, 140 Mo. 65 (41 S. W. Rep. 784). When a creditor having two deeds of trust of different priorities for different debts upon the same property enforces first the junior and then the superior lien, he should be held in making the latter sale to open up the mortgagor's redemption; at least to the

extent of giving to him a right to participate in the sale and to a voice in its conduct, and after the amount bid exceeds the amount due, such creditor cannot stop the sale by cancelling the note evidencing the debt. Coler v. Barth, 24 Colo. 31 (48 Pac. Rep. 656). After the maker and trustee of a deed of trust have been made parties to a suit to convene all liens on the land, brought under W. Va. Code, ch. 139, § 7, a sale under the trust deed cannot be made pending such action. Parsons v. Snider, 42 W. Va. 517 (26 S. E. Rep. 285). A trust deed executed to secure a given debt, payable at a specified time, upon real estate, is, under the statutes of Idaho, a mortgage, and cannot be foreclosed by notice and sale, under a power of sale in such trust deed; and such trust deed can only be foreclosed by judicial sale, pursuant to decree rendered in an action brought therefor in the proper court. Idaho Rev. Stat., §§ 3325, 3327, 3328, 3333, 3334, 3350, 3353, 3354, 4520, 4523, construed and applied. Brown v. Bryan, Idaho (51 Pac. Rep. 995). See opinion for collation of California and Montana cases on this subject. Where one who has become the owner of all the interest of a grantor in a trust deed, purchases the property at a sale thereunder, the trustee is not bound to receive in lieu of such purchaser's payment in full of his bid, his receipt for any surplus remaining after the payment of the debt secured with interest and costs, if it appears that there is a dispute as to who is entitled to such surplus. McClung v. Missouri Trust Co., 137 Mo. 106 (38 S. W. Rep. 578). Where the power of sale provides that it be for cash, the trustee is not bound to bid off or sell to the one who makes the highest bid, unless it is for cash and bona fide. He must exercise his sound judgment in determining who is the proper party entitled to the deed, and he may take time for that purpose. If, through mistake, he strikes off the property to the wrong person, or to one not in a position to comply, or by subsequent investigation learns that the proper bid was not selected at the sale, he may, nevertheless, in the exercise of a wise discretion, and if it appears that substantial justice has been done and the rights of interested parties protected, select the proper person to whom, under the power by which he is acting, the sale should be made and the deed given. A creditor bidding cannot turn in his cash and note

secured merely by a subsequent mortgage on the property, where another holds security on the property intermediate the Coler v. Barth, 24 Colo. 81 (48 Pac.

deed and mortgage.

Rep. 656).

Sec. 649.

Setting aside sale under deed of trust. A sale under a deed of trust of property worth $2,000 for $1,000, will not justify the setting aside of the sale. Monroe v. Fuchtler, 121 N. C. 101 (28 S. E. Rep. 63). The heirs of a grantor in a trust deed cannot have a sale made under a power therein, after his death, set aside, where the property brings a fair price and the proceeds of the sale are applied to the payment of the debt. Russell v. Roberts, 121 N. C. 322 (28 S. E. Rep. 406). The exercise of a discretion by a trustee as to the order of sale where several parcels of land are to be sold will not be interfered with by the courts, where he acts in good faith and without prejudice to the rights of the parties interested. Hinton v. Pritchard, 120 N. C. 1 (26 S. E. Rep. 627). Where a deed of trust expressly absolves the purchaser at a sale made thereunder from any responsibility for a wrong application of the purchase money, a deed to a purchaser at a sale under such deed of trust will not be cancelled on account of the trustees misapplication of the surplus of the purchase money. Coler v. Barth, 24 Colo. 31 (48 Pac. Rep.

656).

Where a trust deed expressly provides. that the owner of the note may become the purchaser, a trustee's sale will not be set aside where the only bidder was such owner; nor will such a sale be set aside because it occurred at half past 10 o'clock when it was advertised to occurr at 10 o'clock A. M. Lothrop v. Tracy, 24 Colo. 382 (51 Pac. Rep. 486; 65 Am. St. Rep. 229). Where a trustee's sale at which the mortgagee was the purchaser, is set aside by the mortgagor on account of want of service on him, the rule that the purchaser at a void foreclosure sale becomes the assignee of the mortgage, cannot be applied so as to prevent the trustee from afterwards maintaining an action to subject the property to the payment of the mortgage. Jennings v. Parr, 51 S. C. 191 (28 S. E. Rep. 82). Where an auctioneer at a sale under a deed of trust, without the knowledge of the trustee acts as agent for

the purchaser of the land, the sale is not void but only voidable and will not be set aside upon the application of persons interested unless they are able to place the purchaser in statu quo. Russell v. Roberts, 121 N. C. 322 (28 S. E. Rep. 406). The fact that a trustee in a deed of trust is an employe of the cestui que trust, does not create a fiduciary relation between the maker of the deed and the cestui que trust, and the trustee may make a sale under the deed at which the cestui que trust may be a purchaser. Monroe v. Fuchtler, 121 N. C. 101 (28 S. E. Rep. 63). A sale under a deed of trust at which the beneficiary, becomes the purchaser will not be set aside on account of the trustee occupying the relation of agent to such beneficiary, where the fact of that relationship was recognized at the time of the execution of the trust and a stipulation was inserted that it should not invalidate the sale. Lipscomb v. New York Life Ins. Co., 138 Mo. 17 (39 S. W. Rep. 465).

Sec. 650. Indemnity mortgages. A mortgage given to secure the guarantor of a mortgagor's note is not void for want of consideration, although given after the debt accrued without new consideration, and given before the surety paid the debt. Steen v. Stretch, 50 Neb. 572 (70 N. W. Rep. 48). Where it clearly appears that a mortgage is given to indemnify the mortgagee against loss on account of his becoming a surety of the mortgagor, and the contemplated contract of suretyship is never entered into, the mortgage fails for want of consideration, although the object of the proposed surety contract was to enable the mortgagor to secure funds with which to discharge a debt owed by him to the mortgagee. Stone v. Palmer, 166 Ill. 463 (46 N. E. Rep. 1080).

Sec. 651. Mortgage to secure several notes. In Alabama it is held that where a mortgage was given to secure the payment of several annual installment notes, it is to be presumed, nothing appearing to the contrary, that the mortgage was conditioned for the payment of the several installments as they matured and that the failure to pay any installments at maturity, is such default as authorizes the foreclosure of the mortgage as to such installments. Fields v. Fields v. Drennen, 115 Ala. 558 (22 So. Rep. 114).

Sec. 652. Building and loan association mortgages. The tender of the amount of a mortgage debt to a building and loan association to its legal secretary and treasurer, is made to the proper person. Smith v. Old Dominion Bldg. & L. Ass'n, 119 N. C. 257 (26 S. E. Rep. 40). A complaint to foreclose a building and loan association mortgage cannot be sustained where the association has received from the mortgagor as interest and dues an amount equal to the mortgage debt. Interstate Sav. & L. Ass'n v. Cairns, 16 Wash. 215 (47 Pac. Rep, 509). Upon foreclosure of a mortgage to secure a debt to a building and loan association, by a trustee under a power contained in the mortgage, it is his duty to pay all the proceeds of the sale thereunder over to a receiver winding up the affairs of such association, although the proceeds of the sale are in excess of the amount due on the mortgage. Thompson v. North Carolina Bldg. & L. Ass'n, 120 N. C. 420 (27 S. E. Rep. 118). Advances made to a mortgagor by an association in redemption of his stock which he does not agree to repay are not " loans " so as to be governed by a bylaw fixing the rights of the association in case of default in the

payment of "loans." Commercial Bldg. & Loan Ass'n v. Mackenzie, 85 Md. 132 (36 Atl. Rep. 754). Where a building and loan association provides for the payment of the debt secured, by the borrower's payment of the premiums and dues sufficient to mature 25 shares of stock held by him, it is held that the fact that the association allowed the borrower to withdraw his shares of stock and substitute a like number in a later series, did not operate as a payment of the original mortgage, so as to give an intervening mortgage, executed by him. to a third party, priority. Merchantville Bldg. & L. Ass'n v. Zane, N. J. Eq: (38 Atl. Rep. 420). Where a building and loan association was unwilling to make a loan to an applicant because it did not like to trust him, one who, under an arrangement with all parties interested took the title to the applicant's land in trust and executed necessary applicacations and conveyances to perfect the loan, was held in the absence of an express condition exempting him from such. liability, to become personally liable for the debt. Novak v. Vypomocny Spolec Vlastenec B. & L. Ass'n, 167 Ill. 264 (47 N. E. Rep. 579).