Yourt v. Hopkins

Breese, J. Several points are made in this case, but two of which we deem important to notice. The first is as to the validity of the sale under the deed of trust by Williams, acting for Raymond, the trustee. The deed provides in case of default, “ it shall then be lawful for the said party of the second part, (Raymond,) his personal representatives or his attorney duly authorized by virtue hereof, to enter upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, or any part, share or portion thereof, and all right, benefit and equity of redemption of the said party of the first part, his heirs, etc., at public sale, etc.,” “ and as the attorney of the said party of the first part, for such purpose duly constituted, irrevocable, or in the name of the said party of the second part, his executors, .etc., or in such manner as the said party of the second part, his legal representatives or attorney may think proper, to make and deliver to the purchaser or purchasers a good and sufficient deed or deeds of conveyance in the law for the same in fee simple, and out of the money arising from such sale, to pay the debt and expenses, etc.” The notice of this sale was signed by Raymond, as trustee, and in his answer he says, that he appointed Williams to make the sale, and was ready himself to make a deed to the purchaser, •and he would have made a deed, had he not been stopped by injunction. Williams under a parol appointment could not make the deed, that is admitted, but we do not see why he could not act as auctioneer, and cry the sale and strike off the property to the highest bidder. For such purpose, it is nowhere held that an appointment must be in writing; on ,the contrary, a verbal appointment is sufficient. Doty v. Wilder, 15 Ill. R. 407 ; Johnson v. Dodge, 17 ib. 433. The auctioneer is the agent of both parties, and his memorandum binds both. Raymond, under this sale by Williams, could have been compelled to make a deed to the purchaser. Raymond could not, without pleading the statute of frauds and perjuries, set up the want of a note or memorandum in writing of the sale. This statute is not relied on here, it is not pleaded. We think that the sale was properly made through the agency or attorneyship of Williams. Upon the other point, we have no doubt that the attachment of sufficient property is, like an execution levied, satisfaction of the debt, and may be so pleaded; but whether or not the recovery of a judgment upon the attachment proceeding, levying an execution and the payment of the same to prevent a sale of the property, is such satisfaction, it may be conceded, that the proceedings under the deed of trust, and by attachment on other property, were concurrent remedies, and could proceed pari passu. The action was brought to the October term, 1851, of the Cook County Court of Common Pleas, in aid of which, an attachment was sued out and levied upon property sufficient to pay the whole debt. The sale under the trust deed took place on the last day of that month, and the property was sold to Tourt, the cestui que trust, but not consummated by the execution óf a deed, by reason of an injunction awarded to prevent it. No money was paid by Tourt on the purchase, and no indorsement of his bid on the note. There was no answer to the original bill for injunction. To the supplemental bill, Raymond and Tourt answered separately, insisting upon the validity of the sale as made by Williams, and his, Raymond’s, readiness to make a deed to the purchaser, Tourt, and he, Tourt, alleging that he was ready and willing, and always had been, to indorse the amount of his bid on the note, on receipt of a deed. No action was taken by him, of any kind, to obtain a deed, nor was anything done in the premises, for two years, when, on the 26th of October, 1853, Tourt caused an alias execution to be issued on his judgment, in the Common Pleas, for its full amount, and placed it in the hands of the sheriff, who levied it upon personal property of the defendants, sufficient to satisfy it, whereupon the defendants paid to the sheriff the whole amount of the execution, being three thousand seven hundred and thirty-one dollars and twenty-one cents, “ in full of the damages and costs within named.” Yourt receipted for a part of this sum—for twenty-three hundred and ninety-four dollars, only. The sheriff states, he received no instructions in regard to enforcing or not enforcing the payment of the whole amount, to his knowledge. Williams, the attorney of Yourt, however, says he told the officer who had the execution, not to receive from the defendant the amount for which these lots had been bid off, and interest from the day of sale. We will not reconcile this contradiction, remarking, merely, if such were the directions of the officer, how easy was it for the attorney to place it beyond controversy, by indorsing on the execution, which he knew the officer had in his hands, the amount of this bid. That was not done, and the officer, who was, pro hae vice, the agent of the plaintiff, was commanded to make the full amount of the debt, by a forced sale of the personal property on which he had levied the writ. We cannot but think the collection of the whole amount of this debt, secured by this trust deed, by execution, was an election by the plaintiff to repudiate his action under the deed of trust. He certainly had the election, and when that right exists, and any act is done by the party entitled to make the election, inconsistent with a contrary intention, he must be held to his election. We regard these proceedings in the suits, as such election. They are inconsistent with a claim to any right as growing out of the sale under the deed of trust. He proceeded as though there had been no sale under that deed, and by his acts repudiated it. He cannot be permitted to “ blow hot and cold ” with the same breath. If he relied on his purchase under the trust sale, and if he deemed it a valid and binding sale, he could have compelled a deed from the trustee. He did not do so. For two years he was passive, and then prosecutes his suit— issues an execution, and whilst it was in the hands of his agent for collection, the defendant pays the full amount of it, and satisfies it. This extinguished all his rights under the trust deed and sale thereon. It was his own election, and he must be bound by it. The case of Fay v. Valentine, 5 Pickering, 418, is in point. The decree of the court below is affirmed. Decree affirmed.