Pearce v. Bryant Coal Co.

Citations

• 121 Ill. 590
• 13 N.E. 561

Syllabus

<p>1. Deed oe trust—to seewre indebtedness—powers of trustee superseded!by a subsequent arrangement—duty of trustee to release on request of oredn0r8m a. trustee in a deed of trust given to secure the payment of bonds1 in which he has no ownership, has no interest in the trust, and when the-bonds so secured are satisfied, in equity, by the giving of a note in their place, secured by another trust deed, and a sale under the latter trust deed,, though the bonds may not be surrendered and cancelled, it will be the duty of the trustee in the first deed, on the request of the holders of the bonds and the makers thereof, to release the property conveyed in that trust deed, from the lien thereof. He can not object that the evidences of the indebtedness are not surrendered or cancelled.</p> <p>2. Same—trustee having an interest in the debt secured—not concluded by agreement with other creditors. A trustee in a trust deed may, however, become the owner of a part of the indebtedness secured by the deed, and if he does, he can not be concluded, as to such part of the indebtedness of which he is the owner, by any agreement between the debtor and the holder of the remainder of the indebtedness, to which he is not a party.</p> <p>3. Same—burden of proof to show trustee is the owner of part of debt secured. Where a trustee refuses to release the trust deed pursuant to the direction of the other parties thereto, on the ground that he is the owner of part of the coupons given for the interest on the principal debt, the burden is upon him to show that fact, and failing to show he is such owner, a court of equity will require him to release the trust deed.</p> <p>4. Same—sale under second deed, as a satisfaction of the prior deed. The taking of a second deed of trust on the same property, for the same indebtedness in a different form, and a sale of the property under the second deed of trust, will, in equity, operate as a satisfaction of the first deed of trust, even though the eviden