| Ill. | Jan 25, 1886
delivered the opinion of the Court:
If the appellant had any claim to relief on account of the alleged usury, he must be considered as having waived it by not asserting his rights till after the land had been sold under the deed of trust. By permitting the land to be sold under a deed of trust given by him, if done in pursuance of authority therein contained, and for. the purpose of having the 2iroceeds applied in payment of indebtedness thereby secured, as provided by the deed of trust, it thereby becomes a voluntary payment by the grantor, and by repeated decisions of this court, his remedy to recover back his usurious interest, or obtain any other relief on account thereof, is gone. Tyler v. Massachusetts Mutual Life Ins. Co. 108 Ill. 58" date_filed="1883-11-20" court="Ill." case_name="Tyler v. Massachusetts Mutual Life Insurance">108 Ill. 58, and cases cited.
The objection that there was no right or power in Burr to make the sale as successsor in trust of Magoun, the original trustee, can not be maintained. This deed of trust in terms declared, that in case of the death of the trustee, “or in ease he should decline to act in making sale of the premises as hereinbefore provided, then the said Milner Brown, or the legal holder or holders of said notes, shall have the option of substituting any other person in his stead, and the acts and doings of said party so substituted shall be as effectual and binding as if done by the said party of the second part. ” On the 21st of July, 1877, said John Magoun, by a formal written instrument by him signed and acknowledged in form before a notary of McLean county, Illinois, declined to act as such trustee, and on the same day, Milner Brown, by a proper instrument duly executed, and in form acknowledged before the same notary, substituted and appointed Hudson Burr as trustee in the deed of trust, in the place and stead of said John Magoun. This, in effect, clothed Burr with the same power and authority as though he had originally been named as trustee in the deed of trust. As wras said by this court in West v. Fitz, 109 Ill. 442: “The author of every trust has full power to provide for the appointment of a successor or successors in trust in case the original trustee or trustees refuse to act, die, remove into a foreign jurisdiction, or are removed by a court of competent jurisdiction.”
It is also urged that the court erred in admitting in evidence the paper evidencing the declination of Magoun to act as trustee, and also the one by which Brown appointed Burr as trustee in place of Magoun, because there was no proof of their execution, except the certificate of the notary, and it is insisted that instruments of this kind are not such as notaries are authorized to authenticate under our statute, and therefore his certificate of acknowledgment is not sufficient proof of their execution, and that other proof thereof should have been made. It would be a sufficient answer to say that no objection of this kind was made when these instruments were offered in evidence on the hearing. Such an objection comes too late if made for the first time in an appellate court. A party can not be permitted to remain silent when an instrument pertinent to the case is offered in evidence, and afterward object that proof "was not made of its execution. The reason is, that had the objection been made at the time, the party offering the instrument could, perhaps, have supplied the necessary proof. By not objecting, the party against whom the instrument is offered must be held to admit its execution. But aside from this, section 21 of the act concerning Conveyances, (1 Starr & Curtiss’ Annotated Stat. 580,) declares that “deeds, mortgages, conveyances, releases, powers of attorney, or other writings of or relating to the sale, conveyance, or other disposition of real estate, or any interest therein, whereby the rights of any person may be affected in law or in equity, may be acknowledged or proved before some one of the following courts or officers, namely, ”—and notaries public are among those named. Other sections prescribe the form of certificate, and as to notaries, their seal of office must be affixed, and when compliance is made therewith, such instruments are admissible in evidence. These papers were acknowledged before and certified by the notary in form, and attested by his official seal, and clearly came within the statute as “writings of or relating to the sale, conveyance, or other disposition of real estate.”
The $300 paid by appellant to appellee Brown, after the sale, "was not received by the latter toward the redemption of the premises. Appellant, at the time he paid it, gave no directions as to how it should be applied, and Brown, therefore, had the right to apply it toward the payment of the balance still due him from appellant after the sale. Bat if this was not so, the parties, by their written agreement entered into during the pendency of the forcible detainer suit, stipulated, for a valuable consideration, as shown by the agreement, that if appellant did not, by the next term of court, pay all taxes on the land, and pay to Brown the sum of $300 in addition to $100 paid to him at the time this agreement was executed, then this $100, and the $300 before paid, should be retained by Brown in full payment of the balance due him on his original debt. Appellant failed to comply with this agreement, and appellee Brown, in consequence, became entitled to retain the $400, in accordance with its terms, and the right of appellant to any relief from the sale on account of it, if he ever had any, was gone. The suggestion of appellant that this agreement was simply one for a continuance of the case, (although that was one of the stipulations,) is not warranted by the terms of the instrument. The fact that the indorsement of the proceeds of the sale was not made till some time after the sale, is wholly immaterial. If it never had been indorsed, it would be no cause for setting aside the sale, but merely a payment to that extent upon the note. The indorsement would only have furnished the evidence of the payment.
We have given this case careful consideration, but feel compelled to hold that appellant is not entitled to redeem or have the sale set aside, even if Brown had not sold to Dailey, and it is therefore unnecessary to notice that feature of the case.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.