Nichols v. Otto

Citations

• 132 Ill. 91
• 23 N.E. 411

Syllabus

<p>1. Purchasers—sale under power in mortgage—who may become a purchaser. Where a mortgage confers a power of sale upon the mort.gagee, and a third party becomes a purchaser at a sale under such power, for the benefit of the mortgagee, the sale will be invalid, and may be set aside at the instance of the holder of the equity of redemption, as against the purchaser.</p> <p>2. The mortgagee, in such case, can not, properly, become the purchaser, either directly or indirectly. Such a sale, howeyer, is not absolutely void, but only voidable. The holder of the equity of redemption may repudiate the sale, or affirm it.</p> <p>3. Laches—setting aside sale under power in mortgage—for irregularities. Where the owner of the equity of redemption knows of defects ■attending the sale under a power in a mortgage, he must, as a general rule, proceed with diligence in his application to set'the sale aside, or ■a court of equity will refuse him relief. Ho particular time is prescribed in which such relief must be sought, but each case must depend on its own facts and circumstances.</p> <p>4. Same—excuse for delay—agreement to allow redemption. If, before ■a sale is made'by a mortgagee under a power in the mortgage, for his own benefit and use, he agrees with the mortgagor to give him thereafter the right and privilege of redeeming from such sale, then laches should not be imputed to the mortgagor in respect to setting the sale aside, until such time as the mortgagee shall repudiate the arrange-meat and claim the property free from any right to redeem. Laches can not be imputed to one who has delayed invoking the aid of a court of equity, relying upon a contract conferring the right of redemption.</p> <p>5. Appeal—whether a freehold involved—6ill to set aside deeds. In a suit relating to the title to real estate, where a decree is entered setting aside certain deeds under which one of the parties claims title,, the result of which is to place the title in the other, the litigation wi