Thornton v. Boyden

Mr. Justioe Bkeese delivered the opinion of the Oourt. This was an action of ejectment commenced in the Mercer Circuit- Court and brought here by appeal. The issue was tried by the court without a jury, and a verdict for the plaintiff, the appellee here. Two questions are raised on the record, first, .as to the sufficiency of the notice of the sale.' The terms of the deed of trust under which the sale was made, are substantially as follows : that on failure to pay the sum specified in the note, ten days after maturity, then the trustee shall proceed to sell at public auction, at the front door of the court-house, etc., for cash in hand, first giving thirty days notice of time, place, and terms of said sale, together with a description of the property to be sold, in one or more newspapers printed in the county of Mercer, the tract of land hereby conveyed, etc. Notice was given in the local newspaper, reciting the execution of the deed of trust, describing the land, amount of debt due, and* the failure of payment, and then proceeds: “ I, Mylo Lee, trustee as aforesaid, do hereby give this publication, that by virtue of the power which is invested in me, I will, on Wednesday, the 28th day of December, 1859, at’the hour of two o’clock in the afternoon of said day, at the courthouse door in the county seat of Mercer county, expose and offer for sale, at public auction, the parcel of land above described, or so much thereof as shall be necessary to satisfy and pay the amount of said note, with interest thereon, till the day of sale, together with the costs and expenses,” etc. Dated this 18th day of November, 1859. The following notice of postponement was published in the same paper, at the foot of the original notice, on the 3rd day of January, 1860: “The above sale is adjourned for eight days from this date, and will take place at the hour of two o’clock p. M. on the 5th day of January, I860.' December 28th, 1859. M. Lee, Trustee.” At the adjourned day, namely, January 5, 1860, the sale was made. No reason for the postponement is assigned in the notice, and there is no reason to suspect any unfairness on the part of the trustee, or any one concerned, or any design to do an injury to any one. Nor is there any ground for believing, that the postponement prejudiced the interests of the debtor. The objection stands entirely upon the fact of the adjournment of the sale. So the case of Richards et al. v. Holmes et al., 18 Howard (H. S.) 147, which was a case, where the trustee had made two adjournments of a sale, where thirty days notice was required, one of them of fourteen days, and the other of one week, both of them being duly published in the same newspaper which contained the original notice, and at the foot of it as in this case, as we infer. ' The Supreme Court held that a power to a trustee, to sell at public auction, after a certain public notice of the time and place of sale, includes the power regularly to adjourn the sale to a different time and place, when, in his discretion fairly exercised, it shall seem to him necessary so to do, in order to obtain the fair auction price for the property. If he has not this power, the elements, or many unexpected occurrences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf, under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale, the court say, does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and £i after having given public notice of such sale by advertisement, at least thirty days; ” but it assumes that the sale will be conducted as such sales are usually conducted. A sale regularly adjourned, so as to give notice to all persons present, of the time and place to which it is adjourned, is, when made, in effect the sale of which previous public notice was given. Several cases are cited by the court, to support the views thus expressed, which we have examined. The first is the ease of Tinkom v. Purdy, 5 Johnson’s R. 345. That case was simply this: Tinkom, a constable, had levied an execution against Purdy, on a set of blacksmith’s tools, which he advertised for sale at auction at a particular time and place. On the day of sale, and after two bids were made, one of the bidders, who had bid twelve dollars, refused to bid more until he saw the tools. The defendant objected to adjourning the sale to a different place, but the constable adjourned to the blacksmith’s shop, where the tools were, at the distance of more than a mile from the place where the auction commenced, and then sold the tools to the highest bidder, for twenty-four dollars'. The defendant brought trespass against the constable, and the jury in the justice’s court found a verdict against him, on which the justice gave judgment. The case was taken by certiorari to the Supreme Court, where it was held, that the adjournment of the sale to a different place was a matter of discretion with the constable, and the question must always be, whether this discretion has been abused. There is no charge of fraud or abuse in the present case, and the constable could not therefore be liable as a trespasser. Another case cited, is the case of Russell v. Richards et al., 11 Maine, 371. In this case the question was, whether an officer holding an execution on which he had levied, could adjourn the vendue to two succeeding days, and to a different place in another town, distant about three miles from the place originally appointed as the place of sale. It was admitted, as the jury found, that the vendue was not adjourned fraudulently or collusively, or to the prejudice of either party. The court say, they cannot find any authority expressly given by statute to a sheriff, to adjourn the vendue of personal property taken on execution, either to a subsequent day or to a different place. Tet it is easy to state cases where such sheriff might not have possible time to complete the sale on the day appointed, owing to the amount of the property and the multitude of articles he has seized ; or the. day appointed might be so stormy that no person could or would attend the auction with a view of purchasing, or for some other cause, as was the fact in the present case; or, if present, persons might not be inclined to bid. In such circumstances, what could a sheriff do, unless he could adjourn the sale? Must the creditor lose his debt by losing the attachment, without any fault in any one on whom he could effectually call for damages ? When an officer, acting fairly, and anxiously consulting the best interests of the creditor and debtor too, adjourns the sale so as to obtain as high a price as he can, must a court of law pronounce this very act an official wrong, and declare the sale void in consequence? To the same effect is Warren v. Leland, 9 Mass. 264, to which the court referred. In the case of Lantz v. Worthington, 4 Penn. State R. 155, Chief Justice G-ibsoN said that the adjournment of a sale for a period of ten days, by an officer who has levied an execution, may be a measure indispensable to the creditor’s interest, as it may enable the sheriff to sell for a better price. These are all the cases to which reference was made by the Supreme Court of the United States, as supporting their views, on which they remark: “If such a power is implied when the law, acting in imitern, selects the officer, a fortiori, it may be presumed to be granted to a trustee selected by the parties.” With the greatest deference, we cannot think the cases cited sustain the court. They seem to us referrible to principles wholly different, they being levies on personal property, the lien on which might be lost unless the officer had a discretion to adjourn the sale. And that is the case from 9 Mass. The lien was lost because the officer did not adjourn the sale. In the case from 5 Johnson, the time of sale was not changed, and the place only, and that in order to give bidders a view of the property. In the case from 11 Maine, the officer was at the place of sale, as we infer from the opinion, and adjourned it, because the weather was so stormy no bidders appeared. The court asks, in such circumstances, what could a sheriff do, unless he could adjourn the sale ? It might be replied, he could return the writ with the indorsement, “ property not sold for want of bidders.” A venditioni exponas could afterwards issue, and the property be again offered for sale. None of the consequences supposed in the case could flow to the injury of the officer or the parties, by acting according to the command of the writ. It is not entirely Safe to give such officers so much and such large discretion. But in regard to an agent created by the act of a party by deed, the case is different, and the principles governing it are also different. The rule is well settled, that an agent cannot go beyond his authority, and that he must act strictly according to the power conferred upon him. If he is empowered to sell land at public auction, at a particular time, at a particular place and on certain terms, those terms, place and time must be strictly observed. It is not true, as stated by the court, that as it is a power which every prudent owner would exercise in his own behalf, under the circumstances supposed, therefore his agent, clothed with a special, well-defined and limited authority, may exercise it also. An owner of property can do with it as he pleases, and if he has advertised to sell at public auction, on a certain day, and by reason of bad weather or non-attendance of bidders, who doubts that he can adjourn it to such time as he pleases ? It is not so with an agent or trustee created by deed, which deed is the charter of his power, and according to which he must act. No enlargement of his power can be implied, when his duties are plainly expressed ; and it is not a fair presumption that a power has been granted to him which, in the cases cited, it was held the law impliedly conferred upon the officers. .The acts of a special agent are not binding on his principal, unless they are strictly within his authority. Munn v. Commission Co., 15 Johns. 44; Beals v. Allen, 18 id. 363; Rossiter v. Rossiter, 8 Wend. 494; Matthews v. Hamilton, 23 Ill. 470; Speer v. Hadduck, decided at this term. By a sale under the trust deed, if made in pursuance of the power, the title of the appellant would be effectually divested, no equity of redemption remaining to him, or to any other person; therefore, in view of such consequences, he has a right to insist upon a strict compliance with the power. This sale was not made after a notice of thirty days, for the first notice had exhausted itself, and it was not renewed for the time stipulated in the deed. "We do not deem it material the deed itself should provide for an adjournment of a sale. We only mean to say, when such a sale is adjourned, full thirty days notice of the time and place of the sale must be given. We recognize the right and the duty of a trustee, as well as a sheriff or other officer or commissioner, to adjourn a sale, whenever, from any cause, a reasonably advantageous price cannot be had, and when it is necessary to prevent a great sacrifice of the property; but we so hold, that he must give the same notice as was originally required. Crocker on Sheriffs, 199; Enloe v. Miles, 12 S. & M. 147. In this case no attempt was made to sell on the day first specified. Upon the remaining point, the rejection of the evidence offered, to- show these premises were a homestead, we refer to the cases of Pardee v. Lindley and Connor v. Nichols, decided at this term, and Patterson v. Kreig, 29 Ill. 532, in which it was decided such evidence should be received in an action of ejectment, but the value of the premises is wholly immaterial in this form of action. We do not design to go over the grounds opened in those cases. The deed in this case contained no waiver of tíie homestead, nor did the acknowledgment. It was competent for the defendant to show the tract of eighty acres adjoined his dwelling-house, and was Claimed by him as a homestead. The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Peversed and rema/nded.