Hall v. Denniston K. Towne.

• Decision Date: 30 September 1867
• Citation: 45 Ill. 493,1867 WL 5316
• Parties: ANDREW J. HALL et al.v.DENNISTON K. TOWNE.
• Court: Illinois Supreme Court

45 Ill. 493

1867 WL 5316 (Ill.)

ANDREW J. HALL et al.

v.DENNISTON K. TOWNE.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Court of Common Pleas of the city of Aurora, Kane county; the Hon. RICHARD G. MONTONY, Judge, presiding.

The facts in this case are fully stated in the opinion.

Messrs. COOK & CAMPBELL, for the appellants.

Mr. CHARLES WHEATON, for the appellee.

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

It appears from this record, that Anson Hall, being the owner of a lot in Batavia, in the county of Kane, on the 11th day of March, 1859, mortgaged it to Andrew J. Hall, to secure the payment of a sum of money therein specified, which was duly recorded. On the 24th of September, 1859, Anson Hall sold and conveyed to Denniston K. Towne the same lot for the sum of $1,800, by warranty deed of that date, which was recorded in June, 1860.

The mortgage made to Andrew J. Hall contained a power of sale, to be executed by the mortgagee or his assigns, if default should be made in the payment of the money, after publishing a notice of thirty days in a newspaper in Kane county, at public auction, to the highest bidder.

Some attempts toward the payment of the money due by this mortgage were made by George Hall, assuming to be the agent of Andrew, with Towne, but nothing was done, and a notice was published in the Kane county newspaper that the property would be sold under the mortgage described as bearing date March 11, 1857, and that the sale would take place on the 21st day of April, 1860. The notice was dated March 22, 1860. The mistake in the date of the mortgage being discovered, the next issue of the paper contained the correction, and the true date of the mortgage was given, and the sale took place, being conducted by one Stevens acting for Andrew J., the mortgagee, who was not present at the sale, and by request of his brother George Hall. It appears that one Alonzo Hall had an assignment of the note and mortgage through one Colyer, to whom Andrew J. Hall had assigned them, and Alonzo bid off the premises for the mortgage money and interest, being $300, and Andrew J. made a deed to him therefor.

The bill was filed to set aside this sale, and to redeem by paying the mortgage money and interest, on the allegations, that the sale was a sham sale; that Alonzo Hall was acting for his brother Andrew, the mortgagee, in bidding off the property; that no money was paid; that Andrew was not present; that the notice of the sale was insufficient, and that he knew nothing of the sale or advertisement until about the 18th of June, 1860, whereupon he tendered both to Andrew and Alonzo Hall the whole amount due on the mortgage, and that the premises were worth, at the time of the sale, $1,300. The prayer of the bill was that an account be taken of what was due for principal and interest on the mortgage, and costs, and that complainant might be allowed to redeem the premises on payment of what might be found due, which he offered to pay, that the sale might be set aside, and satisfaction of the mortgage entered of record.

The court found the sale under the notice void, and set it aside, and that the...