Austin v. Thorp
Austin v. Thorp
Opinion of the Court
The only question presented for our determination by the record-relates to the decision of the court upon the facts of the case.
In order to bind the plaintiff by the act of Mitchell, in receiving the money due upon the note, it must appear
It is claimed that authority to loan the money - would imply authority to take the security of the deed -of trust, and that Mitchell, being himself the trustee, had the power to receive the money in discharge and satisfaction of the trust deed. It may be admitted that, in other cases of trusts, the trustee can bind the cestui que trust by the receipt of money or property which is the subject of the trust. But in this case, the trust was designed to operate as a seourity. In its effect it is not different from a mortgage, and will follow the note it was given to secure. Sargent v. Howe et al., 21 Ill. 118. It would be an extremely doubtful rule, and one subject to great abuses, to hold that a trustee, named in a deed intended to secure the payment of money, and for no other purpose, could, without authority of the creditor, receive payment thereon and discharge the lien created by the conveyance. A safer rule is to regard such an instrument simply as a security, and the trustee as possessing no power to receive payment except as it may be expressly conferred by the creditor.
The evidence failing to show that the plaintiff had empowered Mitchell to receive the money, or subsequently confirmed his act, the defense of payment was not sustained. The judgment of the circuit court is
Reversed.
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