Vaughn v. Powell
Vaughn v. Powell
Opinion of the Court
delivered the opinion of the Court.
We agree with the chancellor in his conclusion against the complainants as to the debt due to Powell; and that Plummer Vaughan had th^ right to devote his cotton, encumbered by the deed of trust, to payment for supplies; and that his wife had no claim inviolable, as against his act, to have the cotton aj>plied to the debt secured by the deed of trust.
Taking possession of the land or demanding it was not a condition precedent to the exercise of the power of sale. It was authorized, but not required by the deed of trust. Kiley v. Brewster, 44 Ill., 186. The contrary view of the Supreme Court of Massachusetts in Roarty v. Mitchell, 7 Gray, 243, is not maintainable. In that case the deed provided that the donee of the power to sell “ may enter and take possession, . . . and may sell and dispose of the same.” Because no entry was made, nor demand made, the court held no valid sale could be made. Manifestly, if the deed made entry and possession a condition precedent, it could not be satisfied by anything short of that. Such conditions must be strictly complied with, and do not admit of substitution or equivalents. Demand of possession cannot take the place of possession where the latter is especially required as a condition of the exercise of power. Affirmed.
Reference
- Full Case Name
- Angelina Vaughn v. Henry Powell
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Homestead. Encumbrance of. Application of payments. Eights of wife; Case in judgment. V. executed a deed of trust on his homestead and the crops to be grown thereon for the year 1882, to secure a debt due P. The wife of Y. joined' in the conveyance. Afterwards P. agreed to furnish Y. with supplies for that year, and, subsequently, for the years 1888 and 1884; and V. agreed, that all cotton of the crop of 1882 shipped to P. from the place mortgaged! should be first credited on the account for supplies, which was done. V-having died, his widow, in a bill of complaint filed, asked that all the encumbered cotton be applied to the debt thereby secured. Held, that Y. had the right to devote his cotton encumbered by the deed of trust to payment for supplies, and that his wife had no claim inviolable as against his acts to have the cotton applied to the debt secured by the deed of trust. 2. Trust Deed. Condition precedent. Taking possession before sale. Case in judgment. A deed of trust provided that, on default in payment of the debt secured, the trustee “shall, at the request of the cestui que trust, take possession of all the property conveyed under this deed, and, after giving ten days’ notice, etc., sell the same.” Held, that taking possession of the land or demanding it was not a condition precedent to the exercise of the power of sale under such deed; the language quoted authorized but did not require the trustee to take possession of the land before sale.