Gardner v. Diederichs

Citations

• 41 Ill. 158

Syllabus

<p>1. Priority of lien—as between several notes secured by the same mortgage, and maturing at different times. It has been held, that, where several notes are secured by a mortgage, in the absence of any special provision to the contrary, the notes are entitled to payment from the proceeds of the mortgage in the order of their maturity.</p> <p>2. This ruling rests upon the fact, that the holder of the note first maturing, without being vested with any special equity by reason of the capacity in which he holds the paper, as assignor, for instance, may foreclose for non-payment, without waiting for the succeeding notes to mature. The power to do this implies a priority of lien in the notes first falling due.</p> <p>3. This principle is applied in this case, where a deed of trust was given to secure several notes, falling due at different times and payable to different persons.</p> <p>4. But where the interest on the notes last maturing is payable annually, the installments of such interest as may fall due at the same time the notes first maturing became due, will be placed on an equal footing with them in respect to payment out of the proceeds of the mortgage.</p> <p>6. Construction of a trust-deed—as to ike time of the maturity of notes secured by it. Where a deed of trust, which is given to secure several notes, payable at different times and to different persons, simply authorizes the trustee, “ in case of default in the payment of said notes, or any part thereof, or the interest accruing thereon,” to sell “ the premises, or any part thereof,” and apply the proceeds to the payment of “ the amount due on said notes,” and to render the overplus, if any, to the grantor, it will not be construed as meaning that, in the event of a sale on the falling due of the notes first maturing, all the notes shall be deemed to be due; but the notes will be held to mature in the order and at the times specified on their face, and subject to the principle that the notes first maturin