Magnusson v. Williams

• Decision Date: 17 November 1884
• Citation: 1884 WL 9979,111 Ill. 450
• Parties: JONAS P. MAGNUSSONv.E. P. WILLIAMS et al.
• Court: Illinois Supreme Court

111 Ill. 450

1884 WL 9979 (Ill.)

JONAS P. MAGNUSSON

v.E. P. WILLIAMS et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on writ of error to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. WILLIAM DAVIS, for the plaintiff in error:

The refusal of the holder of the notes to transfer them without recourse, on an offer to pay the sum due before the sale, made it unnecessary to raise the money.

Williams was trustee for Magnusson, as well as for Craig. Lewin on Trusts, 422, 423; Webber v. Curtis, 104 Ill. 315.

Omission of a trustee to do his duty, whether willful or not, is a breach of trust, from which equity will relieve. Moore v. School Trustees, 19 Ill. 83; Thomas v. Sloo, 15 Id. 66; Trustees of Schools v. Kirwin, 25 Id. 73; Story's Eq. Jur. secs. 331, 994.

It being the trustee's duty to have the property bring its value, he should have adjourned the sale when he found a tender had been made, and that there was no competition. Ex parte Bennett, 10 Ves. 393; Hart v. Ten Eyck, 2 Johns. Ch. 62; Thornton v. Boyden, 31 Ill. 200; Griffin v. Chicago, 52 Id. 141; Richards v. Holmes, 18 How. 147; Story on Sales, 461; Hill on Trustees, 479; Lewin on Trusts, 414.

The clause in the principal note and trust deed, that a failure to pay any of the notes should make the whole debt due, is in the nature of a penalty, against which equity will relieve, upon adequate compensation. Tiernan v. Hinman, 16 Ill. 400; 2 Hilliard on Mortgages, 190; 2 Com. Dig. 166; Willard's Eq. Jur. 56; Williamson v. Railroad Co. cited in 2 Redf. on Ry. 539; Holden v. Gilbert, 7 Paige, 208; Mix v. Beach, 46 Ill. 311; Voris v. Renshaw, 49 Id. 425; Bane v. Gridley, 67 Id. 388; Home Life Ins. Co. v. Pierce, 75 Id. 426; Morris v. Tilson, 81 Id. 621; Vail v. Drexel, 9 Bradw. 439.

A tender of the debt after the day of payment, removes the lien of the mortgage. 1 Hilliard on Mortgages, 516; Flower v. Elwood, 66 Ill. 438; Insurance Co. v. Palmer, 81 Id. 88.

The first day of publication can not be reckoned as one of the thirty days. 1 Coke on Littleton, 46b; 4 Kent's Com. 102, 103; 2 Burrill's Law. Dic. 529; Bigelow v. Wilson, 1 Pick. 485; 7 J. J. Marsh. 202; 1 Blackf. 292; 4 N. H. 267; 3 Pa. 200.

If time is to be computed from any act done, the day on which the act is done is to be excluded in the computation whenever such exclusion will prevent an estoppel or save a forfeiture. Taylor on Landlord and Tenant, sec. 78; Wiggins v. Peters, 1 Metc. 127; Ewing v. Bailey, 4 Scam. 420; Windsor v. China, 4 Green, 298; Cornell v. Moulton, 3 Denio, 12; Farwell v. Rogers, 4 Cush. 160; Blomshard v. Hilliard, 11 Mass. 85; Wilson v. Gastone, 9 Q. B. 137; Waterman v. Jones, 28 Ill. 55; Varin v. Edmunson, 5 Gilm. 270; Walter v. Kirk, 14 Ill. 55; People v. Hatch, 33 Id. 9; Bowman v. Wood, 41 Id. 203; Higgins v. Halligan, 46 Id. 173; Forsyth v. Warren, 62 Id. 68; Roan v. Rohrer, 72 Id. 582; Weld v. Rees, 48 Id. 428; Harper v. Ely, 56 Id. 179; Cushman v. Stone, 69 Id. 516.

When the time expires on a Sunday, the time is extended throughout the Monday following, Sunday being excluded. Salter v. Burt, 20 Wend. 205; Borst v. Griffin, 5 Id. 84; 4 Kent's Com. 102, note b; 3 Chitty's Gen. Pr. 702; 2 Burrill's Law Dic. 496; Angel v. Westcomb, 1 M. & C. 48; Milburn v. Lester, 5 Sim. 565; Scammon v. Chicago, 40 Ill. 146; Chicago v. Vulcan Iron Works, 93 Id. 222; Rev. Stat. 1877, p. 685, sec. 6.

Messrs. WILLIAMS, DOUGLAS & LAWRENCE, for the defendants in error:

When thirty days' notice is required by a deed of trust, Sundays are counted in the computation of time, in the same manner as other days. Weld v. Rees, 48 Ill. 428; Cushman v. Stone, 69 Id. 516.

Where an act is to be performed within or from a day named, the rule in this State is, to exclude the day from which the time commences to run and include the day on which the act is to be performed. Waterman v. Jones, 28 Ill. 54; Bowman v. Wood, 41 Id. 203; Roan v. Rohrer, 72 Id. 582; Forsyth v. Warren, 62 Id. 68; Higgins v. Halligan, 46 Id. 173; Ewing v. Bailey, 2 Scam. 420.

The whole debt being due, a tender of a part could not stop the sale.

No sufficient reason for postponing the sale has been shown. Mere inadequacy of price, unless so gross as to amount to a fraud, is no ground for setting aside the sale. Weld v. Rees, 48 Ill. 434.

Contracts which require the principal debt to become due on the failure to pay interest, have often been considered by this court, and always sustained. Harper v. Ely, 56 Ill. 179; Princeton Loan and Trust Co. v. Munson, 60 Id. 371.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was a bill in equity, to set aside the sale of certain lands under a deed of trust, and to redeem.

On the 24th of June, 1872, Magnusson gave Davidson his promissory note for the principal sum of $974, due February 15, 1876, and also his four coupon notes for interest on that principal sum, at the rate of ten per cent per annum, due, respectively, June 15, 1873, June 15, 1874, June 15, 1875, and February 15, 1876. All the notes were payable at the First National Bank of Galesburg. The principal note contained this clause: “If default in the payment of any interest note, or any portion thereof, for the space of sixty days after the same becomes due and payable, then all said principal and interest notes shall, at the option of the said Elliot C. Davidson, executors, administrators or assigns, become at once due and payable, without further notice.” To secure the payment of these notes, Magnusson, at the time they were given, also executed and delivered to Williams, as trustee, a deed of trust on two tracts of land,--one a quarter section, and the other a half quarter section,--therein particularly described. The deed contained this proviso: that “in default in the payment of the said notes, or either of them, or any part thereof, according to the tenor and effect of said notes, then, on the application of the legal holder of the said notes, or any or either of them, it shall and may be lawful for the said party of the second part, his, etc., to sell and dispose of said premises, and all the right, title, benefit and equity of redemption of the said party of the first part, his, etc., therein, at public auction, at the south door of the First National Bank, in the city of Galesburg, in the State of Illinois, for the highest and best price the same will bring in cash, thirty days' notice having been previously given of the time of such sale, by advertisement in one of the newspapers at that time published in the city of Galesburg, and to make, execute and deliver to the purchaser or purchasers at such sale, good and sufficient deed or deeds,” etc. Soon after the making of the notes and the execution of the deed of trust, Davidson sold the notes, and assigned them to Craig, and delivered the same and the deed of trust to him. When the first interest note became due, it was left for sixty days at the First National Bank of Galesburg, for payment, and not being paid during that time, the trustee was directed by Craig to sell the lands for the amount due on the notes. The trustee thereupon, on the 23d day of August, published a notice that the lands would be sold on the 22d of September then next. On that day,-- i. e., the 22d day of September, 1873,--the lands were sold by the trustee, pursuant to such notice, to Craig.

The grounds upon which the sale is sought to be set aside are: First, the insufficiency of the notice of the sale; second, the proviso in the principal note and the trust deed, authorizing the whole sum to be declared due in case of a failure to pay either of the notes, is in the nature of a penalty or forfeiture, against which a court of equity will relieve; third, there was a tender of the amount due on the first note; and fourth, there was an offer to pay the whole amount due, before the day of sale. These grounds will be considered in the order stated.

First--The notice was clearly published the requisite length of time. The deed required a publication of thirty days. Publication was made on the 23d day of August, and the sale was on the 22d day of September. The rule in such cases is, to exclude the day on which publication was made and include the day of sale. When this is done, there are, here, thirty days. The rule does not require, as counsel for plaintiff in error seem to suppose, that there shall be thirty working days, but only that the notice be given for thirty days' length of time. The last day (the day of sale) must not, of course, and here did not, fall on Sunday. Waterman et al. v. Jones, 28 Ill. 54; Bowman v. Wood, 41 Id. 203; Roan v. Rohrer, 72 Id. 582; Forsyth v. Warren, 62 Id. 68; Higgins v. Halligan, 46 Id. 173; Weld v. Rees, 48 Id. 428; Cushman v. Stone, 69 Id. 516; Harper v. Ely, 56 Id. 179.

Second--The question, here, is simply whether it was competent for Craig, as the assignee of Davidson, on the failure of Magnusson, for sixty days, to pay the first coupon note, to ...