98 Ill. 625 (Ill. 1881), Bryan v. Howland

Citation:98 Ill. 625
Opinion Judge:Mr. Justice Scholfield.
Attorney:Mr. E. F. BULL, for the appellant: Messrs. BUSHNELL & DRUITT, for the appellee:
Case Date:May 14, 1881
Court:Supreme Court of Illinois

Page 625

98 Ill. 625 (Ill. 1881)




Supreme Court of Illinois

May 14, 1881

May 1881, Decided

Page 626

[Syllabus Material]

Page 627

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.

Decree reversed.

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...

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