Bryan v. Howland

• Citation: 98 Ill. 625,1881 WL 10524
• Parties: ELIZABETH BRYANv.EDWARD A. HOWLAND.
• Decision Date: 14 May 1881
• Court: Supreme Court of Illinois

98 Ill. 625

1881 WL 10524 (Ill.)

ELIZABETH BRYAN

v.EDWARD A. HOWLAND.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. GEORGE W. STIPP, Judge, presiding.

This was a bill by Edward A. Howland, a son of Henry Allen Howland, to enjoin a sale under a power in a mortgage given by Henry Allen Howland. The mortgage was given to Elizabeth Bryan, with power of sale in the sheriff of La Salle county.

Mr. E. F. BULL, for the appellant:

Any interest which is liable to sale on execution is the subject of mortgage. A mere naked possession can be sold on execution. Thomas v. Bowman, 29 Ill. 428; Turner v. Saunders, 4 Scam. 532; Ferguson v. Miles, 3 Gilm. 358; Switzer v. Skiles, Id. 532; Donaldson v. Holmes, 23 Ill. 85; Hosmer v. Carter, 68 Id. 98; Lanfair v. Lanfair, 18 Pick. 304; Curtis v. Root, 20 Ill. 522; 1 Pow. on Mort. 17, 18.

Messrs. BUSHNELL & DRUITT, for the appellee:

Henry A. Howland had no interest, except that of a life interest, in the use of the mortgaged premises, as, at the death of the trustee, Allen H. Howland, all right of control, and especially of alienation, became vested in the circuit court of LaSalle county, by the terms of the deed creating the trust.

A sale under the mortgage would cast a cloud upon the claim of the minor heirs, and endanger their peaceable possession as a homestead. The jurisdiction by injunction to prevent a cloud upon title, is closely analogous to the well settled jurisdiction of courts of chancery for the removal of cloud upon title; and the reasoning which supports the jurisdiction in the latter case, would seem to apply with equal if not greater force in the former. It seems, therefore, to follow, as a necessary consequence, that if the aid of equity may be invoked to remove a cloud upon title to realty, it may, with equal propriety, be exerted to enjoin such illegal acts as will necessarily result in a clouded title. High on Injunctions, p. 155, sec. 269; Pettit v. Shepherd, 5 Paige, 493; Christie v. Hale, 46 Ill. 117; Oakley Trustees, etc. 6 Paige, 262.

And it may be asserted, as a general proposition, that a sale of lands under execution which would confer no title upon the purchaser, and the only effect of which would be to cloud the title of others, will be enjoined. High on Injunc. p. 155, sec. 269; Bank of United States v. Schultz, 2 Ohio, 471; Norton v. Beaver, 5 Id. 178; Christie v. Hale, 46 Ill. 117; Key v. Munsell, 19 Iowa, 305; Pixley v. Huggins, 15 Cal. 127.

Again, it is not necessary that the sale should divest complainant of his title to warrant equity in interfering. It is sufficient that it simply operates to cloud his title, and the fact that levy was only made upon the ““right, title and interest” of complainant in the injunction suit, will not avail against granting the injunction. Key v. Munsell, 19 Iowa, 305.

A court of equity is not bound at all times to enforce a strict legal right, but will protect the equitable title when good conscience requires. Lewis v. Lyons, 13 Ill. 117.

Under a prayer for general relief, a court of chancery may decree that which is not specifically prayed for, and grant more than is asked. Isaacs v. Steel, 3 Scam. 97.

The legal title to the estate being in the trustee, the cestui que trust, having at best only an equitable interest therein, can not convey or incumber the legal estate without the concurrence of the trustee. This concurrence was never obtained, and the cestui que trust is only entitled to a concurrence where the whole subject of the trust belongs to him. Tiffany & Bullard on Law of Trusts, 816; Hill on Trustees, 278.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Bill was filed by Edward A. Howland, an infant, by his next friend, against Elizabeth Bryan and Rufus C. Stevens, praying that they be enjoined from selling or attempting to sell, or in any way incumbering, certain real estate therein described, pursuant to the terms of a pretended deed of mortgage. Demurrer was interposed to the bill in the circuit court, but that court overruled the same, and the defendants electing to abide by their demurrer, and refusing to answer over, the court decreed in conformity with the prayer of the bill.

Whether that ruling can be sustained, depends upon the interest of the mortgagor in the property. The mortgagor was Henry Allen Howland, and his interest in the property was derived by deed executed on the 22d day of March, 1860, by Theodore N. Morrison and wife to Allen H. Howland, the tenendum whereof is as follows:

“To have and to hold the said described tracts, pieces, parcels and lots of land and premises, with the appurtenances, unto the said Allen H. Howland, his heirs and assigns, for the uses, purposes and trusts hereinafter mentioned and declared,--that is to say: in trust and confidence, and for the separate benefit of Henry Allen Howland, son of the said Allen H. Howland, and to permit the said Henry Allen Howland to use, occupy, possess, enjoy, improve, rent and build upon the said tracts or lots of land, in any manner he may deem best for the support, maintenance and benefit of himself and his children, during his natural life; also, upon the further trust and confidence, to make, execute, acknowledge and deliver any deed or deeds, instrument or instruments, whereby to grant, convey and release unto any such person or persons as the said Henry Allen Howland shall, at any time (within six months next prior to his decease), by writing, under his hand and seal, duly acknowledged as his last will and testament, direct, order and appoint, the whole or any part of said premises or tracts of land, either in fee simple absolute, or upon such trusts and purposes as charged or chargeable, in such manner and subject to such powers, conditions, provisos, instructions, limitations, declarations and agreements as the--Henry Allen Howland shall, in manner aforesaid, direct, order and appoint; and in default of such direction, limitation and appointment as hereinbefore granted to the said Henry Allen Howland during his life, then in trust to make, execute, acknowledge and deliver any deed or deeds of conveyance, whereby to grant, release and convey the said land, tracts, pieces and lots of land and tenements to the lawful children of the said Henry Allen Howland, as tenants in common, in fee simple absolute, and in default of such children living, then to the lawful heirs of the said Henry Allen Howland, in manner last aforesaid.”

Is the use of Henry Allen Howland, here secured, during his natural life, for himself, exclusively, so that he alone has a vested interest in it,-- or is it charged with a trust in behalf of his children? It will be observed that the use is given to him, absolutely and unqualifiedly. He is to “use, occupy, possess, enjoy, improve, rent and build upon the said tracts or lots of land, in any manner he may deem best.” Stopping here, it would be difficult to employ language more comprehensive to express the idea of the...