253 Ill. 471 | Ill. | 1912
delivered the .opinion of the court:
The object of the bill was to have a decree that the trust deed had been satisfied by the receipt of the income from the property, and it was based upon the hypothesis that the trustee’s sale was void, and that the grantees in the trustee’s deeds acquired by them only a right of subrogation and occupy the position of mortgagees in possession. This claim is founded upon the allegation that no notice of the sale was given. The law is well settled in this State that a sale and deed made by a trustee in a trust deed in the nature of a mortgage, without the notice required by the terms of the trust deed and in violation of the trust, are not void but convey to the grantee the legal title, and can be avoided only in equity. (Reece v. Allen, 5 Gilm. 236; Dawson v. Hayden, 67 Ill. 52; Cornell v. Newkirk, 144 id. 241; Rice v. Brown, 77 id. 549; Quinn v. Perkins, 159 id. 572.) The remedy for a sale contrary to the terms of the trust deed is in equity, only. (Graham v. Anderson, 42 Ill. 514; Koester v. Burke, 81 id. 436; Chapin v. Billings, 91 id. 539.) The deed to Michel and the deed from him to the Schaacks conveyed the legal title to the premises, and it was by virtue of this title that Schaack took possession, and not as mortgagee. The averment is, that persons claiming to be officers of the law dispossessed the complainant, claiming to act under the authority of a writ, and saying that Schaack had become the owner of the property. Schaack never claimed as a mortgagee but only as owner, and his promises to the complainant to-hold the title for her and let her have the property back, were based, not upon any right of redemption which he recognized, but upon the payment of a sum twice as great as her notes and interest amounted to. The possession so taken was adverse to the appellant in the assertion of the rights of the purchaser at the trustee’s sale, and must be regarded as the assertion, by such purchaser, of the ex-tinguishment of the equity of redemption. (Walker v. Warner, 179 Ill. 16; Harter v. Twohig, 158 U. S. 448; McKesson v. Hawley, 22 Neb. 692.) In the cases cited the sales concerned were admittedly void, yet in the latter case it was said by*the Supreme Court of Nebraska: “Notwithstanding the fact that the foreclosure proceeding might have been void, it is clear that the purpose of such proceedings was to cut off and destroy the title of plaintiff, and therefore the conveyance by the trustee to Hartley, had it been legal, would have terminated the plaintiff’s title. The grantees of Hartley taking and holding the property or asserting their right to hold it under warranty deeds from him was clearly adverse to plaintiff. They held as owners and the statute would run in their favor.”
It is true, the sale was irregular and the Schaacks might have been compelled, in equity, to permit a redemption and to account for rents and profits. Had complainant then filed a bill for that purpose she would have been entitled to an answer from the defendants. She did not see fit to do so, but with full knowledge herself waited thirty-two years until the principals in the transaction have long been dead. Witnesses having any knowledge of the transaction may have forgotten it or died, and documents relating to it may have been lost or destroyed. Under such circumstances defendants are not required to search the past for such fragments of evidence as a previous generation may have left, to defend their title. The equitable doctrine of laches applies to such cases. (Hamilton v. Hamilton, 231 Ill. 128; Moore v. Taylor, 251 id. 468.) That a mortgagor who omits for years, without any reasonable explanation, to question a sale which, though voidable, is not void, will be held to have waived the irregularities and acquiesced in the sale is familiar doctrine. The defendants and their predecessors in title have been in the adverse possession of the premises many years beyond the longest period of limitation recognized by the statute. This long continued acquiescence by the complainant clearly appearing in the bill, for which no excuse which can be regarded as reasonable is offered, constitutes such laches as to bar any claim to equitable relief, and this defense may be made by either general or special demurrer. Kerfoot v. Billings; 160 Ill. 563.
The bill alleges that Knauer and Schaack conspired against the complainant. No harm came or could have come to her through the assignment of the notes to Michel while Schaack was the real owner. The failure of Knauer to keep his promise to take care of the interest, and the sale without notice, were harmful to her. But she knew of these things in December, 1878. She knew that the $100 retained by Knauer for the purpose of paying interest was $20 short of the amount which would be due August 16, 1878. She knew that her property had been sold under the trust deed. The trustee’s deed was recorded, and showed then what it shows now in regard to the notice. Nothing was concealed from her. Schaack’s threat to make it hard for her if she attempted to make him trouble is at least capable of the interpretation that he would resist litigation as strenuously as he could. The bill contains the allegation that she first obtained knowledge of the conspiracy between Knauer and Schaack about two weeks before the bill was filed, but the other averments of the bill show that she knew, or could have learned, all the facts material to her rights within a few weeks after the sale. No legal reason is shown for her failure for so many years to make any effort to ascertain her rights.
The demurrer to the bill was properly sustained.
Decree affirmed.
