Ellsworth v. Harmon

Citations

• 101 Ill. 274
• 1882 Ill. LEXIS 85

Syllabus

<p>1. Guaranty—when guarantor is liable. A party guarantied the payment of a promissory note and coupons before their delivery, the note running for five years, with interest payable semi-annually, but containing a clause that if default should be made in the payment of principal or interest, or any part thereof, for the space of ten days, then, on the election of the holder, the whole note and all arrears of interest should become due, and the whole was declared due for default in the payment of interest, and the guarantor, who was also trustee in a deed of trust given to secure the note, was authorized to sell the mortgaged premises for the full amount of the debt, which he did, but struck the property off to the creditor without any authority to do so; the creditor refused to accept the deed made by the trustee, and assigned the note to the plaintiff, who brought suit in his own name upon the guaranty: Held, that the plaintiff was entitled to recover.</p> <p>2. Trustee’s sale—sale to one without authority, is void. Where the creditor in a deed of trust directs the trustee to sell for the entire debt due, but sends no bid or authorizes any to be made for him, a bid by the trustee in the creditor’s name is without authority, and the making of a deed for the property to the creditor, and recording the same, will not affect his rights if he does not accept the deed, and no title will pass.</p>