Ellsworth v. Harmon
Ellsworth v. Harmon
Opinion of the Court
delivered the opinion of the Court:
The only question here presented is, whether the plaintiff can maintain this action, on the facts as found by the Appellate Court. No reason is perceived why plaintiff below should not have judgment against the guarantor for the amount due upon the nóte. By the terms of the note it is shown to be due. By the previous rulings of this court the assignment of this note carried with it the guaranty, and vested in the assignee of the note a right to sue upon the guaranty, in his own name. The bidding by the trustee in the name of the creditor, at the sale, was without authority. The deed made by the trustee to the creditor was not accepted, and the making and recording thereof, by the trustee, did not affect the rights of the creditor,—no title passed by the deed. If the defendant, or any one else, needs that cloud upon the title removed, a court of chancery can afford relief. The creditor, however, can not be delayed in the collection of the debt by reason of such embarrassment.
The judgment of the Appellate Court is reversed, and the cause remanded for further proceedings in accord with this opinion.
Judgment reversed.
Reference
- Full Case Name
- T. E. Ellsworth v. A. E. Harmon
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Guaranty—when guarantor is liable. A party guarantied the payment of a promissory note and coupons before their delivery, the note running for five years, with interest payable semi-annually, but containing a clause that if default should be made in the payment of principal or interest, or any part thereof, for the space of ten days, then, on the election of the holder, the whole note and all arrears of interest should become due, and the whole was declared due for default in the payment of interest, and the guarantor, who was also trustee in a deed of trust given to secure the note, was authorized to sell the mortgaged premises for the full amount of the debt, which he did, but struck the property off to the creditor without any authority to do so; the creditor refused to accept the deed made by the trustee, and assigned the note to the plaintiff, who brought suit in his own name upon the guaranty: Held, that the plaintiff was entitled to recover. 2. Trustee’s sale—sale to one without authority, is void. Where the creditor in a deed of trust directs the trustee to sell for the entire debt due, but sends no bid or authorizes any to be made for him, a bid by the trustee in the creditor’s name is without authority, and the making of a deed for the property to the creditor, and recording the same, will not affect his rights if he does not accept the deed, and no title will pass.