Dorn v. Colt, 180 Ill. 397 (1899)

June 17, 1899 · Illinois Supreme Court

180 Ill. 397

Gay Dorn v. Jennie B. Colt.

Opinion filed June 17, 1899.

Parties—legal holder of notes may file hill to foreclose deed of trust. The legal holder and owner of notes secured by a trust deed may file a foreclosure bill in his own name, making the trustee a defendant, notwithstanding the deed provides that the grantee or his successor in trust may enter and file a bill in his own name and obtain a decree of sale.

Dorn v. Colt, 79 Ill. App. 656, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.

Charles Pickler, for appellant.

Mann & Miller, for appellee.

Mr. Justice Carter

delivered the opinion of the court:

In the superior court of Cook county appellee, Colt, obtained a decree foreclosing a deed of trust as a mortgage, and for the sale of the property. On Dorn’s appeal the Appellate Court affirmed the decree. On this his further appeal Dorn insists that appellee had no right to file the bill in her own name, but that it should have been brought by the trustee.

Appellee was the legal holder and owner of the notes secured by the deed of trust and was the proper party complainant. The trustee was made a defendant. The mere fact that the deed of trust provided that in case of default in payment it should be “lawful for the grantee or his successor in trust to enter, * * * and in his own name, or otherwise, to file a bill in any court of competent jurisdiction to obtain a decree of sale,” etc., did not deprive appellee of her right to file the bill in her own name. (Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279.) No other point is made by appellant.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.