Webber v. Curtiss

• Decision Date: 28 September 1882
• Citation: 104 Ill. 309,1882 WL 10412
• Parties: MARTHA E. WEBBERv.GEORGE W. CURTISS et al.
• Court: Illinois Supreme Court

104 Ill. 309

1882 WL 10412 (Ill.)

MARTHA E. WEBBER

v.GEORGE W. CURTISS et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Champaign county; the Hon. J. W. WILKIN, Judge, presiding.

Mr. WM. B. WEBBER, and Mr. S. F. WHITE, for the appellant:

A trustee will not be permitted to make a sale at an inadequate price. If he can not sell for a fair price, he should postpone the sale. Richards v. Holmes, 18 How. 141; Jackson v. Clark, 7 Johns. 217; Sayles v. Smith, 12 Wend. 57; Miller v. Hull, 4 Denio, 104; Johnson v. Eason, 3 Ired. Eq. 336.

If he has a discretion as to when to post notices, he must act in good faith; and if he acts fraudulently, and posts them in remote places, the sale may be avoided, and he made personally responsible. Johnson v. Eason, supra; Rowan v. Lamb, 4 G. Green, 478. So when a notice is fraudulently advertised in a remote newspaper. Jencks v. Alexander, 11 Paige, 619; Singleton v. Scott, 11 Iowa, 589.

The rule deduced from the authorities is, that proof of the slightest fraud or unfair conduct on the part of the trustee is sufficient to justify the interference of a court of equity, whenever it appears that the owner's property has been sold at a very low price. 2 Perry on Trusts, 169; Longwith v. Butler, 3 Gilm. 32; Burr v. Borden, 61 Ill. 391; Hurd v. Case, 32 Id. 45; Flint v. Lewis, 61 Id. 299; Meacham v. Steele, 93 Id. 146.

Mrs. Webber's possession was notice. Flint v. Lewis, 61 Ill. 299; Dyer v. Martin, 4 Scam. 146; White v. White, 89 Ill. 460; Mathison v. Prescott, 86 Id. 493; Brown v. Gaffney, 28 Id. 150; Riley v. Quigley, 50 Id. 304; McDowell v. Lucas, 97 Id. 489.

Mr. THOMAS F. TIPTON, also for the appellant:

The purchaser at the trustee's sale is chargeable with notice of all the irregularities attending the sale, and their effect can not be evaded by him. Gunnell et al. v. Cockerill, 84 Ill. 319; Hamilton v. Lubukee, 51 Id. 415.

Schlorff, taking by quitclaim from such purchaser, is in no better position. Brown v. Clides, 10 Pet. 211; Oliver v. Pratt, 3 How. 410.

As to setting aside sales for inadequacy of price, counsel cited Meath v. Porter, 9 Heisk. 224; Cassidy v. Cook et al. 99 Ill. 389.

Where a trustee sells at auction, he must make due advertisement, and give due notice to the parties interested. Johnson v. Eason et al. 3 Ired. 330.

Courts of equity will scrupulously examine the conduct of persons acting in a fiduciary or trust capacity. Thomas v. Sloo, 15 Ill. 66; Morris v. Thomas, 17 Id. 112; Atwood v. Caldwell, 12 Id. 96; Story's Eq. Jur. secs. 331-335; Moore et al. v. School Trustees, 19 Ill. 87.

Mr. FRANCIS M. WRIGHT, and Mr. HOMER W. AYERS, for the appellees:

The presumption is, that a person charged with a trust performs his duty, until the contrary appears; and where an act is open to two constructions, one consistent with innocence and fidelity to duty, and the other the reverse, the former will be presumed. Munn v. Burges, 70 Ill. 604; Goodwin v. Mix, 38 Id. 115; Bush v. Sherman, 80 Id. 160.

The notice published was such as was required by the trust deed, and there is no evidence of intent to defraud any one. St. Joseph Manf. Co. v. Daggett, 84 Ill. 559.

No personal notice was required of the sale. Marston v. Brittenham, 76 Ill. 617.

Schlorff and Ahrens had the right to rely upon the record as it was at the time of their purchase. Gibbon v. Hoag, 95 Ill. 45; McHaney v. Schenk, 88 Id. 366; Gunnell v. Cockerill, 79 Id. 79; Hamilton v. Lubukee, 51 Id. 415; Cassell v. Ross, 33 Id. 244; Reese v. Allen, 5 Gilm. 536. They must have had notice in fact of any irregularities in the sale, if any, otherwise they will be protected as innocent purchasers. Hosmer v. Campbell, 98 Ill. 580; Wylder v. Crane, 51 Id. 490.

Proof of notice should be made, and not left to inference. McHaney v. Schenk, 88 Ill. 357; Fairman v. Peck, 87 Id. 156.

A sale will not be set aside for mere inadequacy of price. Watterman v. Spaulding, 51 Ill. 425; O'Callaghan v. Spaulding, 91 Id. 228; Jenkins v. Pierce et al. 98 Id. 646.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

On the 15th of November, 1876, George G. Webber made a deed of trust of certain land to George W. Curtiss, as trustee, to secure the payment of his promissory note to Sarah Shields, and on the 1st day of March, 1879, he conveyed the same land to his wife, Martha E. Webber, subject to the deed of trust. The note matured on the 15th of November, 1879, and at that time, or shortly afterwards, he paid $2000 on the note. On the 5th of July, 1880, Curtiss conveyed the land, pursuant to what was claimed to have been a sale thereof, to Charles L. Burpee. On the 2d of September, 1880, Martha E. Webber tendered to Burpee the amount due upon the note, but he declined to receive it, and on the same day he conveyed the land to Frederick Schlorff. Schlorff afterwards mortgaged the land to Henry C. Ahrens. On the 4th of September, 1880, the bill in chancery in the present case was filed in the court below by Martha E. Webber, against Curtiss, Burpee, Schlorff and Ahrens, praying that the conveyances by Curtiss to Burpee, Burpee to Schlorff, and the mortgage by Schlorff to Ahrens, be set aside, and that she be allowed to redeem from the deed of trust. On hearing, the court below decreed that the bill be dismissed, and the present appeal is prosecuted from that decree.

The grounds of the relief sought are: Complainant had no notice, actual or constructive, of a sale of the land under the deed of trust. She was misled by an agreement with Curtiss, the trustee, to the effect that he would let the debt stand for a certain time, upon her making a designated payment, which she did make, and induced thereby to believe there would, until the expiration of that time, be no sale under the deed of trust. The only notice given was by a publication in an obscure newspaper, published in a small village some eighteen or twenty miles distant from the land, and having but a small circulation, and but eight subscribers in the township in which the land is located. Complainant was not a subscriber for that paper, and no copy of the notice published was ever called to her attention. It is charged that papers having a large circulation, published near the land, were passed by, and the notice published in this paper, to prevent complainant obtaining knowledge of it. It is also charged that the land was susceptible of division, and might, with advantage, have been sold in separate parcels, but that it was sold en masse. And it is also charged that the price bid at the sale was grossly inadequate, etc.

We do not think any ground for setting aside the several conveyances, and letting the complainant in to redeem from the deed of trust, is shown because of any valid agreement to extend the time of the payment of the debt, nor because the land was sold en masse, nor because of the inadequacy of the sum bid for the property, taken singly; but we do think the notice of the sale was insufficient, and that the evidence in regard to those charges is competent as tending to show a fraudulent intent in giving such notice. The defendants insist that the notice was ample, and fully authorized by the power in the deed of trust; and our first inquiry, therefore, must necessarily be, what authority, in this respect, does the trust deed confer upon the trustee.

One clause in the power is in these words: “First giving four weeks' notice of the time and place of such sale, by advertisement in any of the weekly newspapers that may then be published in the said county of Champaign, and State of Illinois, in the English language.” The trustee is the agent of the grantor in the deed of trust, and his assigns, as well as of the creditor thereby secured, and it is his duty to protect his and their interests by acting in good faith in conducting the sale, and in seeing that reasonable publicity be given of the time, place, and terms of sale. ( Meacham v. Steele, 93 Ill. 147.) As we said in Cassidy v. Cook et al. 99 Ill. 388: “The power given, by its very terms implies that the trustee assumed the duty of thinking on the subject, and that he should adopt that course which he should think would be best to secure a good price. It does not mean that the trustee may do as he may please, or that he may do that which should be the most convenient for him.” So long as the trustee shall act honestly in selecting the medium of publication, his act can not be questioned; and the mere fact that others may differ from him in judgment in that regard, does not necessarily tend to impeach his honesty. But if he act from passion or prejudice, or from corrupt motives, he perverts his trust and exceeds his power, and binds none who are not prohibited from inquiring into his act.

The land conveyed by this deed of trust lies in Urbana township, adjoining the city of Urbana, the county seat of Champaign county. The payee and owner of the note thereby secured resided in the State of Florida. The trustee resided in the city of Urbana, and his place of business was in the city, and about one-fourth of a mile from the land. Complainant and her husband resided on the land. There was published at the time this notice was published, in the same building, and immediately over the trustee's place of business, the “Champaign County Herald,” a weekly newspaper, having a circulation of more than 1800 copies, between 400 and 500 of which were in Urbana township. At the same time there was also published at the city of Champaign, something like one mile or one mile and a half from the land, the “Champaign County Gazette,” a weekly newspaper, having a circulation of about 2000 copies in the county, 298 of which were in Urbana township. But Rantoul, where the notice was published, is in a different township, and is some eighteen or twenty miles distant from the land. The “Press,” in which the publication was made, has, in all, a circulation of only...