Chandler v. White

• Decision Date: 31 January 1877
• Parties: GEORGE CHANDLERv.JOHN P. WHITE et al.
• Court: Illinois Supreme Court

84 Ill. 435

1877 WL 9406 (Ill.)

GEORGE CHANDLER

v.JOHN P. WHITE et al.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Ford county; the Hon THOMAS F. TIPTON, Judge, presiding.

Messrs. GOUDY & CHANDLER, for the appellant.

Messrs. WOOD & LOOMIS, for the appellees. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Warren E. Esty having purchased the land in controversy, of James R. Allen, and given him his promissory note for $1850, the balance of the purchase money, on the 18th of March, 1871, made his deed of trust of the land to John P. White, as trustee, to secure the payment of the note. On the 19th of August, 1871, White, as agent of Allen, sold and transferred the note to Sedgwick; and, on the 12th of February, 1873, White, having sold the land at public sale, as trustee, for the payment of the amount due on the note, to Milton L. Grube, conveyed the same to him by deed.

On the 21st of June, 1871, Esty executed a deed purporting to convey the land to Henry Porter, but did not place it upon record until the 28th of February, 1872; and on the 22d day of June, 1871, an instrument, purporting to be a mortgage of the land from Porter and wife to himself, was executed, to secure $4000 of the purchase money. On the 11th of September, 1871, Esty filed for record a forged release, purporting to be executed by John P. White, on the 8th of the same month, and releasing the deed of trust given to secure the payment of the Allen note.

In May, 1872, application was made, in the name of Henry Porter, to the Merchants, Farmers and Mechanics' Savings Bank, of Chicago, for the loan of $3000, on the security of the land in controversy. The application was made by Esty. who resided at Chatsworth, in Livingston county, to Goodell & Warren, loan agents at Loda, in Ford county. He represented that Porter's post office address was Piper City, in Ford county, near which the land lies. From the abstract furnished the bank, which included the forged release of the White deed of trust, without anything to indicate that it was a forgery, the bank was satisfied with the security and forwarded the money to Goodell & Warren. Notes were given the bank. in the name of Henry Porter, and a deed of trust was also delivered, purporting to be executed by Henry Porter and Fanny Porter, his wife, and acknowledged before Warren E. Esty, as notary public, to George Chandler, as trustee, to secure the payment of the notes. Esty produced to Goodell & Warren an order, purporting to be signed by Porter, for the money, and it was paid to him. The proof is clear, and the fact is acknowledged by all parties, that no such person as Henry Porter ever lived at or near Piper City, and all papers purporting to be executed by him, or by him and his wife, were, in fact, executed by Esty. And the proof is satisfactory, also, that the release, purporting to be signed by White, of the deed of trust to secure the Allen note, was a forgery.

The bill of appellant, as finally amended, charges Esty with executing the notes to the bank, and the deed of trust to Chandler to secure their payment, by the name of Henry Porter. The sale by White to Grube is assailed on the ground, first, that, conceding the release to have been a forgery, White and all persons claiming under him, are estopped from denying its authenticity by reason of his negligence to give notice that it was a forgery; and, secondly, that notice of the sale was not given in the manner required by the deed of trust or the law.

The substance of the prayer is, that the sale to Grube be set aside, and that the trust deed to White be declared satisfied so far as it may affect the rights of the bank under the deed of trust to Chandler, or, at all events, that the bank be allowed to redeem from the sale under deed of trust to White. The prayer of Grube's cross-bill is, that his title be confirmed, and that the forged release, purporting to be executed by White, and releasing the deed of trust to him, be declared void, and also that the deed of trust to Chandler be declared void.

The court denied the prayer of appellant's bill, and decreed in conformity with the prayer of the cross-bill.

The first, and, as we think, most important, question raised by appellant, is, do the facts in evidence show that White, the trustee, and Sedgwick, the cestui que trust, were, by negligence in giving notice of the forgery of the release purporting to be executed by White, estopped from setting up the truth and showing that the release was a forgery.

The evidence shows that both White and Chandler were residents of the city of Chicago, and unacquainted with each other. Sedgwick, the holder of the Allen note, was also a resident of Chicago, and does not appear to have been personally acquainted with Chandler. The lands are located in Ford county. In the latter part of the winter or early part of the spring of 1872, White was verbally informed that the forged release had been placed on record, and that Esty had been trying to borrow money on the land from his informant. He says Sedgwick was then absent from the city, and it appears Sedgwick had no notice of the forged release until about the 28th of October, 1872, shortly after which an affidavit declaring the release to be a forgery, was placed on the records of Ford county. There is no evidence tending to show that either White or Sedgwick had notice of the transaction between Esty and the bank which resulted in the Porter loan, and the execution of the notes and trust deed on account...