Willard v. Boggs

Mr. Justice Sheldon delivered the opinion of the Court: On the 25th of September, 1857, James Boggs, George Boggs and Bedmond Cotter, then residents of Chicago, executed a mortgage to Julius Crane and William P. Apthorp, of certain premises, situate in Cook county, to secure the payment of four promissory notes of even date, each for $1,400, due in one, two, three, and four years. Cotter afterward conveyed to the two Boggs, and they became the sole owners of the equity of redemption. The last note having fallen due September 25,1861, and it and a portion of the third note remaining unpaid, to satisfy the payment of the same, on the 5th day of ^November, 1861, Willard, the assignee of the notes and mortgage, sold and conveyed the mortgaged premises to George Smith for $300, in pursuance of a power of sale contained in the mortgage, authorizing the mortgagees or their assigns, in default of payment of the notes, or either of them, to sell the premises for their payment, after publishing a notice in a newspaper in Chicago for thirty days. July 14, 1862, Smith sold and conveyed the property to Willard, for $334. George Boggs left Chicago in May, 1860, and went to Mew Orleans, where he remained until June, 1862, when the city was occupied by the Federal forces. He soon after returned to Chicago, via Mew York. After the sale, Willard took possession of the land, and has held it ever since, and paid all taxes. James Boggs has acquiesced in the sale, and makes no question as to Willard’s title. But George Boggs commenced this suit in chancery, on the 26th day of October, 1868, to declare the sale void as to him, and to permit him to redeem an undivided half of the property. The court below rendered a pro forma decree as prayed in the complainant’s bill. To reverse the decree, the defendants bring the record here, assigning this decree as error. There is no pretense that the sale and conveyance of the mortgaged premises in this case by Willard to Smith were not in entire conformity with the power of sale contained in the mortgage; but the ground of the claim to relief is, that, at. the time of such sale, and of the maturity of the last note, George Boggs was within the territory then occupied by the confederate forces in the late rebellion; that while the war and the complainant’s residence within the confederate lines continued, the contract of indebtedness was suspended; that it was unlawful for the complainant to pay, and for Willard to receive payment, and that the power of sale was suspended; that these effects resulted from the laws of war, and the proclamation of the president prohibiting all commercial intercourse between the rebellious and the loyal States, issued August 16, 1861, in pursuance of the act of congress of July 12, 1861, empowering him to do so; in consequence of which, it is claimed that the sale to Smith was void, and that the equity of redemption still exists in George Boggs. The decision of this court in the case of Mixer v. Sibley, 53 Ill. 53, is adverse to the claim here set up. It was held, in that case, that proceedings by. attachment, in 1862, for the collection of a debt, on the part of a creditor living in this State, against a defendant who resided in Alabama, a State then in rebellion against the United States, notice of the pendency of the suit having been given by publication in a newspaper, which resulted in a judgment by default and sale of the property attached, were not void, and were not suspended by the state of war. It is there said, “No authority has been or can be shown, that the right to the writ was taken away by the rebellion, or by act of congress, or by the president’s proclamation consequent thereupon. Such was not the object of either. Neither was designed to deprive creditors in the adhering States of the use of all such remedies for the collection of their debts as the laws of those States gave them.” As in that case, the remedy for the collection of the debt by writ of attachment was not taken away, so here, the remedy for the collection of this mortgage debt by the exercise of the power of sale given in the mortgage was not taken away. It may be said, as it was there, that the question is not whether the sale might not have been stayed until the termination of the war, but whether, not having been stayed, and the power of sale having been actually exercised by the sale of the premises to a third person, is that sale void ? The court went so far only in that case as to hold that the efflux of time as to redemption from the sale under execution was suspended during the continuance of hostilities, and to allow the judgment debtor, after the expiration of the time for redemption, to redeem from the judgment creditor, such land as he had purchased under the execution sale as remained in his hands, but denied that, or any relief, as against purchasers from the judgment creditor, holding their equities to be equal to those of the complainants. It is admitted by the counsel for the appellee that the sale to Smith and the reconveyance by Smith to Willard, were bona fide and for actual consideration paid, as was sworn to in the answer of Willard, called for under oath, or at least it is admitted that the contrary is not proved. Under the principle of the above decision, had this sale been under a decree of foreclosure in a suit in court, with notice by publication, it would have been sustained. We think the sale under the power in the mortgage must be entitled to equal force. In the one ease it would have been in pursuance of law, in the other it was in pursuance of the contract between the parties, which was as a law between themselves. The sale here was under the precise conditions Boggs, by his deed, authorized it to be made. But he claims that the power of sale was suspended by an event which had occurred aliunde, to wit: his being, by his own voluntary act, in another State at the time the last note fell due, and the publication of notice and sale were made, where he was cut off from all means of access to his creditor to pay the debt, and shut out from the receipt of any newspaper notice of the sale. But neither Willard nor Smith appear to have had any knowledge of the whereabouts of Boggs, and no duty was imposed upon them to ascertain it. Boggs was free to annex his own conditions to the power of sale, and he might have provided that it should not be exercised in such a contingency as here occurred, in which case, Smith would have been put upon inquiry, by the terms of the power of sale, to ascertain whether it existed or not. Boggs, by his deed of mortgage, made a conveyance of the legal title, and saw fit to give therein an irrevocable power of sale, to sell the equity of redemption, on two conditions only, the non-payment of the debt after its maturity, and publication of thirty days’ notice of the sale, in a newspaper printed in Chicago. When Willard, in execution of the power of sale, offered the mortgaged premises for sale, Smith saw that both the conditions required for the exercise of the power existed; he had no notice of any thing to affect the proper exercise of the power, and he was entitled to act on the faith of the power given by Boggs, and to lay out his money in the purchase of the property, in confidence that he was acquiring all the interest of Boggs in it. The same reason of public policy exists for giving security to titles derived under such sales, as under judicial sales. Were they liable to be invalidated on any such grounds as are set up in this case, it would tend to discourage purchases at such sales, and lead to the sacrifice of property so exposed for sale. Certainly, no greater effect should be given to this supposed suspension of the power of sale, claimed to have been caused by the facts set forth, than would be given to an actual revocation of a power by .the principal. Had the power of sale in this case been'1 a revocable one, and Boggs had actually revoked it, a subsequent sale of the property to a third person in pm-suance of the power, who had purchased on the faith of it, without any notice of the revocation, would bind the principal, Boggs. Story on Agency, § 470. If the complainant has suffered by the sale of his property, it has only been in consequence of what he himself expressly contracted and authorized to be done. The defendant, Smith, has parted with his money for the property, in reliance upon the express written authority to sell it, given by the complainant, without notice of any reason why the power might not properly have been exercised, acquiring an apparently perfect title by the record. On comparison of the equities between the parties, we can perceive no just claim on the part of the complainant, which entitles him to take from the defendant a title acquired under the circumstances of the present case. We think the bill should have been dismissed. The decree pro forma is reversed, and the cause remanded for further proceedings in conformity with this opinion. Decree reversed.