Tartt v. Clayton

Citations

• 109 Ill. 579

Syllabus

<p>1. Mortgage with power op sale—sale under, not vitiated, if bought in part payment of mortgagee’s indebtedness. On the sale of land by a mortgagee, under a power of sale, for default in payment of moneys thereby secured, the fact that the purchaser pays no money to the mortgagee, but the amount of the bid is applied upon a debt due from him to the purchaser, under an arrangement to that effect before the sale, will not affect the validity of such sale.</p> <p>2. Same—burden of proof to invalidate sale. On bill to set aside a sale of land under a power in a mortgage, on the ground the notice of the sale was defective, and was published'in an obscure paper, the burden of proving such ground rests upon the complainants.</p> <p>3. Same—notice of sale—recitals in deed as evidence. Recitals in a deed made by a mortgagee under a power of sale, of the giving of due notice of the sale, in conformity with the requirements of the statute and in pursuance of the provisions of such mortgage, by advertisement in a certain public newspaper printed and published in the county, for the space of thirty days, said advertisement containing a description of the real estate sold, with the time, place and terms of sale, show prima facie that the notice of the sale was good. The fact that such deed recites particularly certain essentials and omits certain others, does not repel the conclusion that the notice was good.</p> <p>4. Same—sale under power—when personal notice necessary. Where a mortgagee holding under a mortgage containing a power of sale, may have thrown persons succeeding to the rights of the mortgagor off their guard by seeking different relief by bill in chancery, it may be that before selling upon notice under the power of sale in the mortgage, he should notify the mortgagor or his assignee of his intention; but if a specific demand is made for the payment of the sum due, of the mortgagor, or one holding a second mortgage, such persons can not say they have been lulled i