Silver v. First National Bank

The Trial Court found “there was a lack of-due diligence on the part of the defendant in not adjourning the sale in that the ordinary person of average prudence under the circumstances would have adjourned the sale for a reasonable time.” Accurately speaking a mortgagee under a power of sale mortgage is not a trustee. 1 Scott, Trusts, s. 9 (3d ed. 1967); Restatement ( Second ), Trusts, s. 9; 1 Bogert, Trusts & Trustees, s. 29 (2d ed. 1965). “The mortgagee on whom the power is conferred is not, of course, a trustee or fiduciary within an accurate use of those terms.” 4 American Law of…