Vaughn v. Powell

Campbell, J., delivered the opinion of the Court. We agree with the chancellor in his conclusion against the complainants as to the debt due to Powell; and that Plummer Vaughan had th^ right to devote his cotton, encumbered by the deed of trust, to payment for supplies; and that his wife had no claim inviolable, as against his act, to have the cotton aj>plied to the debt secured by the deed of trust. Taking possession of the land or demanding it was not a condition precedent to the exercise of the power of sale. It was authorized, but not required by the deed of trust. Kiley v. Brewster, 44 Ill., 186. The contrary view of the Supreme Court of Massachusetts in Roarty v. Mitchell, 7 Gray, 243, is not maintainable. In that case the deed provided that the donee of the power to sell “ may enter and take possession, . . . and may sell and dispose of the same.” Because no entry was made, nor demand made, the court held no valid sale could be made. Manifestly, if the deed made entry and possession a condition precedent, it could not be satisfied by anything short of that. Such conditions must be strictly complied with, and do not admit of substitution or equivalents. Demand of possession cannot take the place of possession where the latter is especially required as a condition of the exercise of power. Affirmed.