Grover v. Hale

• Decision Date: 20 November 1883
• Citation: 1883 WL 10346,107 Ill. 638
• Parties: WILLIAM O. GROVERv.PETER L. HALE et al.
• Court: Illinois Supreme Court

107 Ill. 638

1883 WL 10346 (Ill.)

WILLIAM O. GROVER

v.PETER L. HALE et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. E. L. BEDFORD, for the plaintiff in error:

Shissler was a stranger to the trust, and acted under delegated power of the trustee (Ollinger) in his absence from this State. This sale did not bar complainant's equity of redemption. Warnecke et al. v. Lembca, 71 Ill. 92; Flower v. Elwood, 66 Id. 449; Hamilton v. Lubukee, 51 Id. 419; Chambers et al. v. Jones, 72 Id. 278.

In a case where all questions of fairness or regularity were removed, Chancellor Kent said: “To allow such a sale to stand would open the door to a very lax and dangerous practice.” Heger v. Deaves, 2 Johns. Ch. 154.

A purchaser under a trust deed containing a power of sale is chargeable with notice of defects and irregularities attending the sale, and their effect can not be evaded by him. Gunnell et al. v. Cockerill et al. 84 Ill. 319.

The purchaser knew facts which were sufficient to put a purchaser on inquiry, and is chargeable with all facts which the inquiry would have disclosed. Redden et al. v. Miller et al. 95 Ill. 345; Russell et al. v. Ranson, 76 Id. 170.

The rule prevails with us that the duty devolves upon the defendants to establish not only that they have a conveyance legal in form, but that they have actually paid for the land. It is not sufficient even that they have secured the payment of the purchase money,--they must have paid it in fact, before they had notice of the complainant's equitable title. Brown v. Welch, 18 Ill. 343; Redden et al. v. Miller et al. 95 Id. 345; Moshier v. Knox College, 32 Id. 164. Mr. J. W. LUKE, for the defendants in error:

While Mrs. Hale has paid nothing of the purchase money, yet relying on her purchase, and being ignorant of the fact that the trustee was not present at the sale, she has incurred a personal liability of $400 or $500 for materials used in improving the lot, and has paid about $100 for labor on the building.

The complainant is only a judgment creditor of some of these parties, and a stranger to the trust deed. The parties to that are satisfied, and make no complaint. The complainant was not damaged in any way by reason of the sale being made in the manner it was.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

On the 18th day of November, 1869, Peter Hale and Jacob Burhyte, being owners of the lot in controversy, situate in Dunleith, this State, conveyed the same in trust to John Ollinger, to secure their five promissory notes of that date, for the sum of $500 each, payable to the order of Nelson M. Brett, in one, two, three, four and five years, respectively, one of which, in due course of business, for value, came to the hands of John M. Miller. Grover & Baker, on the 19th of December, 1877, recovered a judgment against Hale and Burhyte, which became a lien upon the equity of redemption in said lot, and the same was sold under an execution issued on said judgment to Grover & Baker, who assigned the certificate of purchase to the plaintiff in error, William O. Grover, and the latter, on the 14th of June, 1880, received a sheriff's deed for the premises. On the 16th of August, 1880, the lot was sold under the trust deed, at the instance of Miller, to satisfy an unpaid balance of $356 on the note held by him, as above mentioned, and the same was struck off to him at $200, he being the only bidder present at the time of the sale. Miller received a deed for the property, purporting to have been executed by Ollinger on the day last mentioned, though it is evident if made on that day it must have been done in St. Louis, Missouri, and not here, for the evidence clearly shows he was in the latter place at the time of the sale, and that the sale itself was conducted by Louis Shissler for Ollinger, the trustee; and it further appears the deed was acknowledged by Ollinger in St. Louis, the 4th of September, being nineteen days after the sale, as appears from the acknowledgment itself. On the 1st of June, 1881, Miller sold the property to Margaret J. Hale for $224, payable in three installments, viz., $75 in one year, $75 in two years, and $74 in three years from date of purchase, with eight per cent interest thereon. Nothing has ever been paid on the purchase, though Mrs. Hale swears she has spent about $100 in improving the property, but can not tell the exact amount. The evidence tends to show the yearly value of the premises is $60 or $75.

The present bill is filed to correct certain errors in the sheriff's deed to Grover; to set aside the so-called trustee's sale; to have Ollinger's deed to Miller declared void; to have the bond for a deed from Miller to Margaret Hale set aside as against the equity of redemption of plaintiff in error; for an account of what is due Miller under the trust deed, and to redeem therefrom. The court, by its decree, awarded the relief prayed, in so far as it related to the correction of the sheriff's deed, but found, as a matter of fact, the proofs failed to sustain the charge in the bill that the sale under the trust deed was made by Shissler as agent of Ollinger, and therefore entered a decree denying the other relief sought by the bill, from which decree Grover appeals to this court.

By what process of reasoning the circuit court reached the conclusion this sale was not made by Shissler as the agent of Ollinger, is not apparent. Miller and Shissler were the only persons at the...