Clevinger v. Ross

109 Ill. 349

• Court: Illinois Supreme Court
• Decided: March 26, 1884
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

This case differs in no essential feature from Webber v. Curtiss et al. 104 Ill. 309. Briefly, the case made is this; A trust deed is executed to secure the payment of a promissory note, with a proviso that in default of payment at the maturity of the note, on application of the legal holder of the note, the trustee shall sell the premises described in the deed, after having given thirty days’ previous notice of the time and place of sale by publication in any of the weekly newspapers published in the English language in Champaign county, etc. After the maturity of the note the agent of the legal holder thereof, and also of the trustee, promises the party then owning the land, and upon whom the burden of paying the note rests, that the note need not be paid when due, but shall remain unpaid until demand thereafter shall be made for that purpose, and that such party shall have personal notice when payment will be required thereafter. Then after so promising, by such agent, the legal holder of the note requests the trustee to proceed to sell, and he thereupon advertises the sale in a newspaper published in as remote a part of the county from where the land lies as is possible, which has no circulation in that township, and but a limited one in any part of the county outside of the township in which it is published. The sale is made pursuant to such publication, without any actual notice to the party upon whom the burden of paying rests, and a deed is executed to the purchaser, who is a son of the legal holder of the note, and a brother of the trustee. Meanwhile, the party upon whom rests the burden of paying, was in the actual possession of the property, claiming that under the promise made by the agent of the legal holder of the note, and of the trustee, he was entitled to personal notice before there could be any valid sale.

We think it clear the sale was invalid. The trustee was not caused to proceed promptly to sell upon default, and the legal owner of the note could not be allowed to have a sale, after having promised not to do so without personal notice, upon a secret publication. This would be allowing parties to make profit from their own falsehoods and faithlessness. This pretended notice is a sheer mockery. It is not a notice. It is a publication so made as to avoid giving notice. The court very properly set the sale aside, and since those condemned to the payment of costs were all in the wrong we perceive no error in that regard.

There was no cross-bill filed by Charles Clevinger, and hence there was no error in not decreeing in his favor for redemption money. Charles Clevinger is not an innocent purchaser without notice. The possession of the defendants in error was enough to require him to ascertain the extent of their rights before purchasing.

The decree is affirmed.

Decree affirmed.