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SHILLABER V. ROBINSON, 97 U. S. 68 (1877)

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U.S. Supreme Court

Shillaber v. Robinson, 97 U.S. 68 (1877)

Shillaber v. Robinson

97 U.S. 68


1. A deed of land, with a power of sale, to secure the payment of a debt, whether made to the creditor or a third person is in equity a mortgage, if there is left a right to redeem on payment of such debt.

2. Sales under such a power have no validity unless made in strict conformity to the prescribed directions. Therefore a sale made on a notice of six weeks, instead of twelve, as required by the mortgage and the statute of the state where the lands are situate, is absolutely void and does not divest the right of redemption.

3. A person holding the strict legal title, with no other right than a lien fur a given sum, who sells the land to innocent purchasers must account to the owners of the equity of redemption for all he receives beyond that sum. chanroblesvirtualawlibrary

Page 97 U. S. 69

The original transaction which gave rise to the present suit was a sale by John Shillaber of about three thousand acres of land in the State of Illinois to John Robinson, the appellee. The contract was evidenced by a written agreement by which it appears that Robinson, in part payment of the Illinois land, was to convey to Shillaber three different parcels of land lying in the State of New York -- one in Kings, one in Sullivan, and one in Essex County.

On this contract, a suit in the nature of a bill for specific performance was brought, in the Circuit Court of Ogle County, Illinois, by Robinson against Shillaber. The latter having subsequently died, his sole heir, Theodore Shillaber, was substituted as defendant. The suit resulted in a decree which, among other things, established an indebtedness of Shillaber to Robinson, on final accounting, of $4,249.58, and ordered that, on the payment of this sum, Robinson should convey to Shillaber the lands in New York already mentioned. In order that the whole matter should be finally disposed of, the decree then ordered that Robinson and wife should make and deposit with the clerk of the court a good and sufficient conveyance for said lands, as an escrow, to be delivered to Shillaber on his payment of the sum aforesaid within ninety days. It further provided that if the money was not paid by Shillaber within that time, Robinson should convey the lands in trust to Silas Noble, who "should proceed to sell the same, in such manner, and after giving such reasonable notice of the time and place of such sale, as might be usual or provided by law in the State of New York," and out of the proceeds pay the expenses of the trust and the money due Robinson, with interest, and hold the remainder, if any, subject to the order of the court.

Shillaber did not pay the money as ordered by the decree. Robinson then made the deed of trust to Noble in strict accordance with the terms of the decree, and Noble, after giving notice of sale, by publication once a week for six weeks successively in the "Brooklyn Standard," sold, at public auction, on the sixteenth day of March, 1861, the lands to John A. Robinson, for the sum of $1,950, and made to him a conveyance of chanroblesvirtualawlibrary

Page 97 U. S. 70

the same. Said John A. Robinson purchased the lands for the benefit of John Robinson. Neither the deed from John Robinson to Noble nor that from the latter to John A. Robinson was placed upon record.

Since that time and before the commencement of the present suit, John Robinson sold all these lands to divers and sundry individuals for sums amounting in the aggregate to $9,628.

The present suit was commenced in November, 1870, in the Circuit Court for the Eastern District of New York by Theodore Shillaber against John Robinson, requiring him to account for the value of the New York lands on the ground that he had never acquired any other title to them than that which he held when the decree of the Illinois court was made, and that, since the purchasers from him were innocent purchasers, without notice of Shillaber's rights, their title was perfect and Robinson was liable to him on a final settlement for the value of the lands less the sum which Shillaber owed him, as ascertained by the decree in the Illinois court.

The court, on hearing, dismissed the bill, whereupon Shillaber appealed here.

The provisions of the New York Revised Statutes regarding notice, are as follows:

"SEC. 3. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises or some part of them shall be given as follows:"

"(1) By publishing the same for twelve weeks successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situated, or, if such premises shall be situated in two or more counties, in a newspaper printed in either of them."

"(2) By affixing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held in the county where the premises are situated, or, if there be two or more such buildings, then on the outward door of that which shall be nearest the premises. And by delivering a copy of such notice at least twelve weeks prior to the time therein specified for the sale to the clerk of the county in which the mortgaged premises are situated, who shall immediately affix the same in a book prepared and kept by him for that purpose, and who shall also enter in said

Page 97 U. S. 71

book at the bottom of such notice the time of receiving and affixing the same, duly subscribed by said clerk, and shall index such notice to the name of the mortgagor, for which service the clerk shall be entitled to a fee of twenty-five cents."

"(3) By serving a copy of such notice at least fourteen days prior to the time therein specified for the sale upon the mortgagor or his personal representatives and upon the subsequent grantees and mortgagees of the premises, whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien by or under a judgment or decree upon the mortgaged premises subsequent to such mortgage, personally or by leaving the same at their dwelling house in charge of some person of suitable age or by serving a copy of such notice upon said persons at least twenty-eight days prior to the time therein specified for the sale by depositing the same in the post office, properly folded and directed to the said persons at their respective places of residence

Page 97 U. S. 76


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