Irish v. Antioch Coll.

• Decision Date: 15 November 1888
• Citation: 126 Ill. 474,18 N.E. 768
• Parties: IRISH et ux. v. ANTIOCH COLLEGE et al.
• Court: Illinois Supreme Court

126 Ill. 474

18 N.E. 768

IRISH et ux.

v.ANTIOCH COLLEGE et al.

Supreme Court of Illinois.

November 15, 1888.

Appeal from superior court, Cook county; LORIN C. COLLINS, JR., Judge.

Bill filed by George Irish and Ann Irish, his wife, to redeem from a sale under a trust deed given to secure a bond for a loan of $7,000 from Antioch College, in which Antioch College, Charles W. Barnes, Edward G. Mason, trustee in a deed of trust given to secure a loan upon the property from Barnes to Galloway, James B. Galloway, Frank Pilik, Horace G. Lunt, trustee, Anna Pilik, Albert L. Coe, and David B. Lyman, are joined as partiesdefendant.The trust deed was executed to Albert L. Coe, trustee, and dated October 10, 1872, and on February 12, 1876, David B. Lyman, as successor of Coe in the trust, under a power of sale, conveyed the property in question to Artemas Carter, now deceased, who, on January 15, 1877, executed a declaration that he held the same in trust for Antioch College.On October 7, 1884, Antioch College conveyed a portion of the property to Frank and Anna Pilik, and the remainder, on March 26, 1885, to James B. Galloway.The court below rendered judgment for defendants, and plaintiffs appeal.B. M. Saunders and Paul Brown, for appellants.

Pedrick & Dawson and Jeremiah Leaming, for appellees Antioch College and others.

Mason Bros., for appellees Galloway, Mason, and Barnes.

BAILEY, J.

By the terms of the deed of trust, the legal title to the premises conveyed, together with the power of sale thereby granted, was vested, in the first instance, in Coe, the trustee.But it was also provided that, upon the happening of either one of four events, viz., (1) Coe's death; (2) his absence; (3) his inability to act; or (4) his refusal to act,-said title and power should become vested in Lyman, as Coe's successor in trust.The power of a person creating and declaring a trust of this character to give it any shape he may choose, and to appoint, not only a trustee, but a successor in trust, and prescribe the conditions upon which such successor may take the place of the original trustee, and execute the trust, is recognized and affirmed by the decision of this court in Trust Co. v. Fisher, 106 Ill. 189.Whether either of the prescribed conditions happened in the present case, so as to authorize Lyman to execute the power of sale, is a question of fact to be determined from the evidence.During all the time Lyman was attempting to execute the power of sale, Coe was in fact absent from the state; but, in view of the rule established by the decision above referred to, it may be doubtful whether his absence was of such a permanent character as was contemplated by the language of the deed of trust.But, whether this be so or not, the evidence clearly establishes a refusal on the part of Coe to act as trustee.Both he and Lyman testify that, when applied to by Carter, the legal holder of the bond and deed of trust, to execute the power of sale, he declined to act, placing his refusal partly upon the ground of his anticipated absence from the state, and partly upon another ground which he deemed sufficient.His refusal was absolute.When asked to perform the duties of his trust, he stated that he would not act as trustee.It was competent for him to refuse to act if he saw fit; and it was doubtless in view, among other things, of such possible refusal that provision was made for a successor in trust.Upon such refusal, the legal title to the land conveyed by the deed of trust, as well as the power of sale created by said deed, passed, by operation of the power of appointment already exercised by the creator of the trust, to and became vested in Lyman, as successor in trust.

But it is urged that the sale by Lyman cannot be sustained, because, in the notice of sale, as well in the trustee's deed, he based his right to act as trustee upon Coe's absence, and not upon his refusal to act.It is clear that this misrecital, if...