Taylor v. Reid

• Decision Date: 21 June 1882
• Citation: 103 Ill. 349,1882 WL 10323
• Parties: ESTHER E. TAYLORv.SIMON REID et al.
• Court: Illinois Supreme Court

103 Ill. 349

1882 WL 10323 (Ill.)

ESTHER E. TAYLOR

v.SIMON REID et al.

Supreme Court of Illinois.

Filed at Ottawa Jun. 21, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

Bill was filed in the Circuit Court of Cook county, on the 23d of March, 1881, by Esther E. Taylor, against Simon Reid, Thomas Murdoch, Frederick Fischer, Anton Christianson Berg, and George S. Bullock, to redeem lots 2 and 4, in block 20, of Duncan's addition to Chicago, from a sale made under a deed of trust.

It is alleged in the bill that on the 27th of October, A. D. 1875, the complainant, with her husband, Douglas S. Taylor, borrowed of said Reid, Murdoch & Fischer, partners in business in Chicago under the firm name of ““Reid, Murdoch & Fischer,” the sum of $10,500, for which they gave their promissory note, payable three years after date, with interest at the rate of ten per cent per annum, payable semi-annually; that to secure the payment of such promissory note the complainant, together with her husband, conveyed lots 2 and 4, in block 20, in Duncan's addition to Chicago, in trust to L. C. Paine Freer, with power in him, in case of default, etc., on the application of the legal holder of said promissory note, after having given thirty days' previous notice, by publication once in each week, for four successive weeks, in the “““Chicago Legal News,” or some other newspaper at the time of sale published in the city of Chicago, to sell the said premises at a time specified in such notice, at the south-east corner of Adams and La Salle streets, in the city of Chicago, at public auction, to the highest bidder, for cash, etc.; that on or about the 1st of November, 1878, the said principal sum of $10,500 being due, and the interest thereon, amounting to $525 due April 27, 1878, and $525 due October 27, 1878, being unpaid, said firm of Reid, Murdoch & Fischer, being the holder of such note and of notes given for such interest, caused to be prepared and published a notice signed by said Freer, as such trustee, that on the 10th day of December, A. D. 1878, at the hour specified in said notice, at the southeast corner of La Salle and Adams streets, he would sell the said premises under and by virtue of such power, and for the purposes aforesaid; that afterwards, and before the 10th of December, 1878, complainant applied to said Reid, Murdoch & Fischer, to desist from such sale, and to allow complainant forbearance on the said debt, and said Reid, Murdoch & Fischer assured complainant that the sale would not make any difference, for all they wanted was their money, and they would take that at any time, after sale as well as before--that there would be no bidders at the sale advertised, and they would have said lands struck off and conveyed to themselves, and would thereafter hold the same, as before, as security for said debt, and would at any time accept said debt and interest, and that it would not make any difference about such sale--complainant could redeem the property after the sale just as well as before. It is further alleged that complainant, relying on and being thrown off her guard by such assurances, did not sacrifice other property to raise money, as she could have done, to redeem said lots before the time fixed for such sale, nor did she attempt to procure bidders to bid at such sale and buy said lands for their value, though said lands were worth much more than the said sum secured thereon. And it is further alleged that said sale coming on, there were no bidders, but said Reid, Murdoch & Fischer caused said lots to be entered as sold to Thomas Murdoch, one of the members of said firm, for $5919 each, and caused said Freer to execute a deed for the same to him, etc.

It is charged that the notice was not published, as recited in the trustee's deed to Murdoch, for four successive weeks in the “Chicago Legal News,” but for at least two of said weeks it was not published in said “Legal News,” nor in any other newspaper; that the holder of said notes had no authority or right to become a purchaser at a sale made under and by virtue of the powers aforesaid; that on or about the 2d day of October, A. D. 1879, Reid, Murdoch & Fischer pretended to sell and convey unto Anton Christianson Berg the north half of said lot 4, by warranty deed, for the consideration of $3750, and, on the same day, they also pretended to sell and convey unto George Bullock the south half of said lot, for a like consideration of $3750; and it is also further charged that each of the defendants has acknowledged the right of the complainant to redeem said premises until within the then last sixty days. The prayer of the bill is, that the complainant be let in to redeem.

The answers admit the borrowing of the money, execution of note and deed of trust, sale under deed of trust, execution of deed of trustee, and sale and conveyance to Berg and Bullock, as alleged, but deny that there was ever any agreement that complainant be allowed to redeem, that the notice was insufficient, but, on the contrary, allege and claim that the sale was, in all respects, regular and legal. The material allegations are all put in issue, and the defendants set up and rely, also, upon the laches of the complainant in prosecuting her suit.

On hearing, the court below decreed that the bill be dismissed. From that decree complainant appeals to this court, and assigns for error--

First--The Circuit Court erred in dismissing said bill.

Second--The court rejected evidence offered by plaintiff that ought to have been received.

Third--The court received evidence offered by defendant that ought to have been rejected.

Fourth--The court ought to have granted to the plaintiff relief according to the prayer of her bill.

Mr. EDWARD ROBY, for the appellant:

The notice, if published as recited in the trustee's deed, was insufficient. The trustee's deed was void for defect of power, and this appears in the deed itself. The trust deed required thirty days' prior notice of the sale, while the notice was for more than thirty days before. Power to sell on thirty days' notice can not be exercised on sixty or ninety days' or a year's notice. Stine v. Wilkeson, 10 Mo. 96; Kellogg v. Garrico, 47 Id. 159.

Power to sell on thirty days' notice, by publication in a newspaper, requires a publication in every issue of the paper for that period. Stine v. Wilkeson, 10 Mo. 96; Armstrong v. Scott, 4 G. Greene, 433.

The statute (Rev. Stat. chap 95, sec. 14,) requires at least thirty days' previous notice of such sales by publication in four weekly issues of some newspaper. This notice was not given until the publication was complete. Burton v. Chicago, 53 Ill. 87; Chicago v. Vulcan Iron Works, 93 Id. 222.

The provision of the statute is not that the trustee shall begin to give the notice thirty days before sale. It means that the four weeks' publication must be completed before the sale. As to when notice is complete, see Thormeyer v. Sisson, 83 Ill. 188; Scammon v. Chicago, 40 Id. 146; Randall v. Sanger, 16 Id. 27; Haywood v. McCrary, 33 Id. 459; Vairin v. Edmonson, 5 Gilm. 270.

No laches can be imputed because her notes were kept outstanding, and the keeping of such notes against appellant is evidence that the debt is still outstanding, and the title, though absolute on its face, is still in mortgage. Enner v. Thompson, 46 Ill. 223; Sutphen v. Cushman, 35 Id. 196.

Mr. FRANK J. CRAWFORD, for the appellees:

Appellant's counsel assumes two propositions: first, that the notice was given too long before the sale; and second, that the notice was not given long enough before the sale. The first is based upon the provisions in the deed of trust, and the second on the statute.

The authorities cited have no application here, as, if the trust deed was made prior to the time the statute was in force, July 1, 1874, and had simply required twenty days' notice, one notice published twenty days previous to the sale would have been sufficient. Wild et al. v. Rees, 48 Ill. 428; Cushman v. Stone et al. 69 Id. 520; St. Joseph's Manf. Co. v. Daggett, 84 Id. 559.

A longer notice than is required, by a few days, can work no injury, but is calculated to work to the debtor's benefit. Tooke et al. v. Newman et al. 75 Ill. 219; Beal v. Blair et al. 33 Iowa, 313. See, also, Atkinson v. Duffy, 16 Minn. 48.

When a statute requires three weeks' notice to be given before court, it does not require that three weeks shall intervene between the third publication and the session of the court. Fry v. Bidwell, 74 Ill. 381.

The publisher's certificate, which in all respects conformed to the requirements of the law, sufficiently proved that the notice was duly published. That, under the statute, was sufficient evidence thereof. Rev. Stat. chap. 100, sec. 1.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The first objection taken by counsel, in argument, to the decree below, is, “the notice, if published as recited in the trustee's deed, was insufficient; the trustee's deed was consequently void for defect of power, and this appears in the deed itself.”

The proof of the notice published, as recited in the decree, was, that “on the 9th day of November, A. D. 1878, the trustee caused due notice to be published in the ‘Chicago Legal News,’ a newspaper published in the said city of Chicago, that said premises hereinafter described would, on the 10th day of December, A. D. 1878, at the hour of 10 o'clock in the forenoon of said day, be sold at public auction, at the south-east corner of Adams and La Salle streets, in said city of Chicago, in said county of Cook, to the highest bidder, for cash, by virtue of the power and authority in him vested by said trust deed, which said notice was duly published once a week for four successive weeks, to-wit: four times in the said ‘Chicago Legal News,’ and that the date of the first paper containing the same was the 9th day of November, A. D. 1878,...