Speer v. Hadduck

Mr. Chief Justice CatoN delivered the opinion of the Court. Speer and wife executed a mortgage to Goodman, who assigned the same to Terry, who assigned to Wadsworth. The mortgage contained a power of sale as follows: “It shall be lawful for the said party of the second part, his personal representatives or assigns, either in person, or by attorney duly constituted, to enter upon all and singular the premises hereby conveyed, and either in person, or by attorney, to sell the same at public auction, after having first given thirty (30) days’ notice of the time and place of sale, (such sale to be made in the city of Chicago,) by advertisement in any one of the daily newspapers that may at that time be published in said city of Chicago, (personal notice of such sale to said party of the first part being hereby expressly waived,) and as the attorney of the said party of the first part, by these presents for such purpose duly constituted, to make, execute and deliver to the purchaser or purchasers at such sale, a good and sufficient deed of conveyance for the same,” etc. Wadsworth advertised, sold and conveyed the premises in his own name, and not in the name and as the attorney of the mortgagors. And the only question is, whether this conveyed a good title in fee simple to the purchaser, Hadduek. Manifestly it did not. He could only make the sale and conveyance under and in pursuance of the power contained in the mortgage; and that power he was bound strictly to follow. That power did not authorize him to sell and convey the premises in his own name, but it expressly required him to do that as the attorney of the mortgagors, and this he could only do by using the name of his principal. If it be said that this conveyance at least operated as an assignment of the mortgage, and that Hadduek, as such assignee, had a right to recover on the mortgage for condition broken, then the verdict and judgment were wrong, for they find and adjudge that Hadduek has the fee simple of the premises. The judgment is reversed, and the cause remanded. Judgment reversed.