Massachusetts Mutual Life Insurance v. Boggs

Citations

• 121 Ill. 119
• 13 N.E. 550

Syllabus

<p>1. Setting aside trustee’s sale—whether sale nlade in pursuance of ■the power—presumption. On bill to set aside a trustee’s deed made under a power requiring the sale to be made on the premises, on the alleged ground the sale was not made at the time it was advertised nor on the premises, the burden of proof rests upon the complainant, the presumption being that a person charged with a trust performs his duty, until the contrary is made to .appear.</p> <p>2. Same—of laches in filing a bill to set aside trustee’s deed, and .for redemption. A trustee’s deed of land purported to have been made on the premises on December 12,1878. The owner never acquiesced in the sale, but disputed its validity, and refused to surrender possession until dispossessed by legal proceedings, contested for several years, and within a reasonable time after the suit for possession was decided, to-wit, in March, 1884, he filed his bill to set the deed aside, on the ground no sale had in fact been made at the time and place specified in the notice, there being no intervening rights of innocent purchasers: Held, that there was no such laches as to prevent the relief sought.</p> <p>3. If the power of sale had in fact been executed, but the execution had been merely irregular or defective, and in the meantime the rights of innocent purchasers had intervened, a different question might arise. But there being no sale, in fact, when the creditor obtained possession under the trustee’s deed, he went in as mortgagee, and held as such, and a bill to redeem would lie at any time until barred by the Statute of Limitations.</p> <p>4. Usury—commission paid to loan agents. A party desirous of a loan applied to the agents of an insurance company, employed to procure life insurance only, who obtained the loan of the company at the highest legal rate of interest, and exacted of the borrower a commission of two and a half per cent, but the evidence showed that the company loaning had nothing to do with the co