Cushman v. Stone

Citations

• 69 Ill. 516

Syllabus

<p>1. Deed of trust—whether a conveyance is a deed of trust or mortgage. Where a party made a promissory note payable to himself, indorsed the same in blank, and delivered it to A, and at the same time executed a conveyance of land to B, declaring therein that it was in trust; that in case of default in the payment of the note, then, on the application of the legal holder of the note, B, his heirs, assigns or successor' in trust, might sell and dispose of the land, on certain terms, for cash, etc.: Held, that the conveyance was a deed of trust, and not a mortgage, and that A, as the legal holder of the note, was the cestui que trust, notwithstanding a misrecital in the deed that the note was indorsed and delivered to B, the proof showing that B never had any interest in the same.</p> <p>3. Power of sale—who should execute it. A power in a deed of trust authorizing the trustee to sell on default in the payment of the grantor’s note, upon application of the legal holder of the same, can not be executed by the holder of the note, even if the note was in the first place delivered to the trustee indorsed in blank, and by him transferred to another by delivery.</p> <p>3. Trustee’s sale—notice under power. Where a deed of trust authorized the trustee to sell the land conveyed, for non-payment of a note, “first giving notice of the time and place of such sale by publishing such notice in one of the newspapers at that time published in,” etc., ten days before such sale, and a notice of sale on the thirteenth day of a month was published on the second day of the same month and each day thereafter except on Sundays, being nine insertions, it was held, that this was a compliance with the terms of the deed of trust, and was sufficient in respect to the time.</p>