Warnecke v. Lembca
| Decision Date | 30 September 1873 |
| Parties | LOUIS WARNECKE et al.v.JOHANN LEMBCA. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was a bill in chancery, by Johann Lembca against Louis Warnecke, Johanna Warnecke, his wife, Conrad Warnecke and Walburga Rauscher, to redeem certain real estate from a sale under a trust deed. The opinion of the court states the grounds upon which the relief was sought. The court below allowed the redemption.
Mr. R. H. FORRESTER, for the appellants.
Messrs. BARBER & LACKNER, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:
This bill was to redeem the land in controversy from a sale made under a trust deed, for default in the payment of the indebtedness thereby secured. The trustee named in the deed, who was clothed with the power to make the sale, having died, the sale was made by Walburga Rauscher, his widow and the administratrix of his estate. It was provided in the trust deed, in default of the payment of the notes secured, or any part thereof, on application of the legal holder, “John Rauscher, or his legal representative,” should advertise, sell and convey the land as the attorney of the grantor.
The only question presented material to the decision of the case is, whether the administratrix of the deceased trustee could rightfully make the sale.
The law is very jealous of this class of sales, and will permit no marked deviation from the authority giving the right. Mason v. Ainsworth, 58 Ill. 163.
The general rule is, the trustee must himself execute the power, and if, by reason of death or incapacity, he can not do it, relief can only be had on application to a court of chancery to appoint a trustee to execute the residue of the power.
It is claimed the “legal representative” of the trustee is designated, by the express terms of the deed, to make the sale on the application of the legal holder of the indebtedness. Who is the “legal representative,” in the sense that term is used in the trust deed, is a question involving very grave difficulty. It is well known this term does not always have the same signification. Legal representative, or personal representative, in the commonly accepted sense, means administrator or executor. But this is not the only definition. It may mean heirs, next of kin or descendants. 2 Redfield on Wills, 78, 80, 81; Delannay v. Burnett, 4 Gill, 454; Grand Gulf Railroad and Banking Co. v. Brayan, 8 S. & M. 234.
The sense in which the term is to be understood depends somewhat upon the intention of the parties using it, and is to be gathered, not always from the instrument itself, but as well from the attending circumstances. It will be observed these definitions of “legal representative” have reference exclusively to administration of estates, both testate and intestate, and the relation certain parties bear to deceased persons. It seems to us most illogical to say the term “legal representative,” as used in the deed, comes within any of the definitions given. It will bear another construction, and one more in harmony with the intention of the parties using it. When found in instruments other than those relating to the administration of estates or the affairs of the deceased persons, it has been construed sometimes to mean assignees, or a certain class of purchasers, accordingly as it was supposed the parties must have understood it.
Nothing could be more absurd than to suppose the grantor, in this instance, intended to use it in the sense of heirs or next of kin. They might be so numerous, or there might be minors, lunatic, insane, or persons otherwise incapacitated to act, and it would be impracticable to have any execution of the power. Nor is it more reasonable to believe it was intended to use the term in the sense of administrator or executor. The administrator or executor is the legal representative of the decedent only as to the personal estate.
The legal title to the real estate covered by the trust deed was in the trustee. It did not descend to the administratrix, and how could she convey that which she did not have? She was in no way connected with the title that was in the trustee, but was a stranger to it. She could not convey in the name of the trustee, for he was dead; nor could she convey in the name of the grantor, or her own name, for no such power was given. Where the trustees have the legal title and power of sale, they alone are competent to contract and make a good title to the purchaser. Perry on Trusts, sec. 787.
In Delannay v. Burnett, supra, it was declared the purchaser of a pre-emption right is to...
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