Irish v. Antioch College

Mr. Justice Bailey delivered the opinion of the Court: By the terms of the deed of trust the legal title to the premises conveyed, together with the power of sale thereby granted, was vested, in the first instance, in Coe, the trustee. But it was also provided that, upon the happening of either one of four events, viz., 1, Coe’s death, 2, his absence, 3, his inability to act, or 4, his refusal to act, said title and power should become vested in Lyman, as Coe’s successor in trust. The power of a person creating and declaring a trust of this character to give it any shape he may choose, and to appoint not only a trustee but a successor in trusj; and prescribe the conditions upon which such successor may take the place of the original trustee and execute the trust, is recognized and affirmed by the decision of this court in Equitable Trust Co. v. Fisher, 106 Ill. 189. Whether either of the prescribed eon-' ditions happened in the present case, so as to authorize Lyman to execute the power of sale, is a question of fact to be determined from the evidence. During all the time Lyman was attempting to execute the power of sale, Coe was in fact absent from the State, but in view of the rule established by the decision above referred to, it may be doubtful whether his absence was of such a permanent character as was contemplated by the language of the deed of trust. But whether this be so or not, the evidence clearly establishes a refusal on the part of Coe to act as trustee. Both he and Lyman testify that when applied to by Carter, the legal holder of the bond and deed of trust, to execute the power of sale, he declined to act, placing his refusal partly upon the ground of his anticipated absence from the State, and partly upon another ground which he deemed sufficient-His refusal was absolute. When asked to perform the duties, of his trust he stated that he would not act as trustee. It was competent for him to refuse to act if he saw fit, and it was doubtless in view, among other things, of such possible refusal^ that provision was made for a successor in trust. Upon such refusal, the legal title to the land conveyed by the deed of trust, as well as the power of sale created by said deed, passed, by operation of the power of appointment already exercised by the creator of the trust, to aind became vested in Lyman, as successor in trust. But it is urged that the sale by Lyman can not be sustained because, in the notice of sale as well as in the trustee’s deed, he based his right to act as trustee upon Coe’s absence and not upon his refusal to act. It is clear that this mis-recital, if material at all, has no bearing whatever upon the question of Lyman’s power to act, but only goes to the regularity of the mode in which the trust was executed. It is doubtless the rule that in the execution of trusts of this character, the forms and mode of procedure prescribed by the creator of the trust must be strictly pursued. But it should be observed that the deed of trust in this case contained no provision requiring the successor in trust to recite in his notice of sale the circumstances which devolved the execution of the trust upon him. If the notice had been entirely silent on that subject, we can not see that it would have been defective for that reason. An incorrect recital, then, so long as it pertained to a matter wholly outside of and beyond anything required by the terms of the deed of trust, was immaterial, unless it can be seen that it was of such a character as would have some probable tendency to prejudice the interests of the owners' of the equity of redemption. We are unable to perceive how the recital in question could have had such tendency, and are therefore disposed to hold that the validity of the sale was in no way impaired or affected by it. But there is another ground upon which the complainants were properly denied the relief prayed for in their bill. The sale took place on the 12th day of February, 1876, and the original bill was not filed until October 13, 1886, ten years and eight months after the sale, and ninó years and three months after the complainants had been put out of possession by the execution of a writ of restitution issued on a judgment against them in an action of forcible detainer. The defect in the execution of the power of sale, if it was a defect, was a mere irregularity, and not of a character to render the sale absolutely void. George Irish, the principal complainant, was present at the sale, and well advised at the time of all the facts of which he now seeks to avail himself as a ground for vacating the sale. During the interval between the sale and the filing of the bill the property in question became largely enhanced in value. Large sums of money had been expended upon it both by Antioch College and its grantees by way of repairs and improvements. The rights of purchasers and mortgagees had intervened. No excuse for the delay on the part of the complainants in asserting their rights is made or attempted except their inability to redeem for want of means. - No fraud or improper conduct on the part of the trustee, the purchaser or the parties claiming under the purchase is alleged, the only ground upon which the sale is attacked being the alleged irregularity above mentioned. The rule is, that the owner of the equity of redemption should avail himself in apt time of irregularities in a sale under a power of sale in a mortgage or deed of trust, and that his failure to do so will constitute laches. It is not permissible for him to lie by and await events, and have the power, at any time in the future, to let the sale stand, or to avoid it, according as it may be found then for his interest to do. There should be promptitude of action within a reasonable time. Hamilton v. Lubukee, 51 Ill. 415; Dempster v. West, 69 id. 613; Maher v. Farwell, 97 id. 56; Bush v. Sherman, 80 id. 160; Hoyt v. Pawtucket Institution for Savings, 110 id. 390; McHany v. Schenk, 88 id. 357. Under the circumstances of this case, the laches of the complainants in failing to file their bill to redeem in apt time is sufficient to bar their right to relief in equity. The decision of the court below is the only proper conclusion to be drawn1 from the pleadings and evidence, and the decree will therefore be affirmed. Decree affirmed.