Koester v. Burke

• Decision Date: 31 January 1876
• Citation: 81 Ill. 436,1876 WL 10018
• Parties: JULIUS G. KOESTERv.BEATTY T. BURKE,WILLIAM H. SNELLING et al.v.BEATTY T. BURKE,
• Court: Illinois Supreme Court

81 Ill. 436

1876 WL 10018 (Ill.)

JULIUS G. KOESTER

v.BEATTY T. BURKE,WILLIAM H. SNELLING et al.

v.BEATTY T. BURKE,

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macoupin county; the Hon. CHARLES S. ZANE, Judge, presiding.

Mr. WILLIAM R. WELCH, and Mr. J. G. KŒSTER, for the appellant.

Messrs. JOHN M. & JOHN MAYO PALMER, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill to enjoin the prosecution of an action of ejectment brought by appellee to recover a certain lot in the city of Carlinville, and to set aside the deed under which appellee claims title to the premises. The court denied an injunction, and dismissed the bill, and this decision is relied upon as error.

The facts in this case, and in the action of ejectment, Kœster against Burke, No. 122 of the present term, are the same, and this opinion is intended for each case.

There is no substantial disagreement between the parties in regard to the facts presented by the record.

It appears, that on the 12th day of August, 1872, Aaron B. Allen, who was seized of the premises, for the purpose of securing three promissory notes, payable to David W. Hart, one for $427.40, due January 1, 1873; one for $485.36, due on the 12th day of August, 1873; and the other for the sum of $558.15, due on the 12th day of August, 1874, conveyed the premises, by deed of trust, to one Dan. A. Burke, as trustee. The deed provided, in default of the payment of any one of the notes when due, and the default continued for three days, in that event the whole of the notes should become due and payable. On the application of the legal holders of the three notes, the trustee, after having advertised the premises twenty days in a newspaper published in Carlinville, or by printing notices, should sell the premises at public vendue, for cash, and, upon making sale, execute and deliver to the purchaser a deed. The note that became due first, was sold and assigned to Merritt R. Judd. The other two notes were transferred to Beatty T. Burke, appellee.

A portion of the note held by Judd remaining unpaid on the 21st day of November, 1873, he notified the trustee to sell the premises. The trustee, on the same day, advertised the land for sale on the 13th day of December. On the 22d day of November, Burke, the holder of the other two notes, notified the trustee to advertise and sell the premises, in satisfaction of the notes held by him. The trustee, accordingly, advertised the land for sale on the 12th day of December, to satisfy and pay appellee's notes.

On the 12th day of December, the trustee sold the premises to appellee, Burke, for the amount of the two notes held by him, and executed and delivered a deed. On the day following, the trustee again sold, and appellant became the purchaser for $186.95, and a deed was made by the trustee and delivered to him. Both deeds were recorded on the 13th day of December, the Burke deed having been filed a few hours ahead of the other. Appellant, after he obtained a deed, went into possession of the premises, and appellee brought ejectment.

It may be regarded as a well settled rule of law in this State, that where a mortgage or deed of trust has been given to secure the payment of several notes, which become due at different times, the notes have a priority of lien, in the order in which they become due and payable. Vansant v. Allmon, 23 Ill. 30; Gardner v. Diederichs, 41 Ill. 158.

The note, therefore, which was assigned to Judd being due and payable before the notes transferred to Burke, Judd had a prior lien on the premises for the satisfaction of his note, which could not be divested or destroyed by the conduct or action of the trustee, or Burke, the holder of the second lien on the premises.

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