Hamilton v. Lubukee

Citations

• 51 Ill. 415

Syllabus

<p>1. Notice—of sale under power in a mortgage—its requisites. Where the advertisement or notice of a sale of real estate under a power of sale contained in a mortgage, describes a different and other or larger indebtedness than that described in or secured by the mortgage, the sale will not thereby be vitiated so as to entitle the mortgagor to redeem, it not being shown that the property was injuriously affected by it, or bidders deterred thereby from attending the sale, or that it was so published for a fraudulent purpose.</p> <p>2. Assignment—power of sale in a mortgage. It has been held that where a mortgage gives to the mortgagee, or his assigns, power to sell upon default in payment, an assignment of the note secured by the mortgage, will vest the power of sale in the assignee—the power thereby passes from the mortgagee, and cannot be executed by him.</p> <p>3. But the mere assignment of the mortgage by an endorsement thereon, without an assignment of the note, the mortgage not being an assignable instrument by endorsement, either by the common law or under the statute, will not operate to pass the power of sale to the assignee, but it will still remain in the mortgagee.</p> <p>4. Purchasers—how fa/r chargeable with notice of irregularities. The original purchaser at a sale by a mortgagee, under a power of sale contained in the mortgage, is chargeable with notice of defects and irregularities attending the sale, and cannot evade their effect.</p> <p>5. But with remote purchasers the rule is different; all matters in pais, affecting the sale, it not being void but only voidable, must be brought home to their knowledge, on a proper case made, sustained by proof.</p> <p>6. Lapse of time—its effect upon, vrregulat'ities in sale by mortgagee. A mortgagor should avail himself in apt time of irregularities in a sale of the premises by the mortgagee under a power in the mortgage. So a delay of four years after the mortgagor had knowledge of the sale, and proceedings u