Union Mut. Life Ins. Co. v. White

• Citation: 1883 WL 10185,106 Ill. 67
• Parties: UNION MUTUAL LIFE INSURANCE COMPANYv.OWEN WHITE.
• Decision Date: 29 March 1883
• Court: Supreme Court of Illinois

106 Ill. 67

1883 WL 10185 (Ill.)

UNION MUTUAL LIFE INSURANCE COMPANY

v.OWEN WHITE.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

Messrs. SWETT & HASKELL, for the appellant:

The arrangement, as it is pretended, for an extension of time, is obnoxious to the Statute of Frauds. Here, too, was a corporation, and the disposition of its property was vested in a finance committee. Mr. Warfield had authority, as agent, to collect this deed and to foreclose the mortgage, but not to arrange with White that he might, at any indefinite time, redeem the property. It was the duty of White, if he arranged with Warfield, to ascertain his powers. If he did not he must suffer the consequences of his want of authority to bind the corporation.

Messrs. MONROE & BALL, for the appellee:

The rule in equity, once a mortgage always a mortgage, applies here. No act or artifice of the parties is allowed to nullify this rule. Any agreement or stipulation cutting off the right of redemption has always been held utterly void. While a promise to extend the time of redemption beyond the period named in the mortgage, if made after the time limited has passed, will have no effect if not founded on a legal and sufficient consideration, if made before such limited time expires, though without consideration, it will be enforced by the courts. 2 Jones on Mortgages, sec. 1053; Chase v. McLellan, 49 Maine, 375; Ross v. Sutherland, 81 Ill. 275; Davis v. Dresback, Id. 393; Dodge v. Brewer, 31 Mich. 227; Stephens v. Illinois Mutual Fire Ins. Co. 43 Ill. 327; Pensoneau v. Pulliam, 47 Id. 58.

It is claimed that the agents of the corporation had no power to make such arrangement. Having held the agent out as having such power, the corporation can not urge its private rules and regulations to defeat the rights of strangers dealing with such agents acting within the apparent scope of his authority. Herman on Estoppels, secs. 538, 509.

Mere delay in filing a bill for relief, short of a period fixed as a bar by the Statute of Limitations, will not preclude the assertion of an equitable right. Gibbons v. Hoag, 95 Ill. 45.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity to set aside a sale of real estate by a trustee, and to redeem the property from the trust deed. It appears that on the 4th day of June, 1875, the insurance company loaned to White $18,000, for five years, at nine per cent interest, the interest payable semi-annually; that White secured the loan by a deed of trust on the land sought to be redeemed by this bill, conveying it to L. D. Boon, with the usual powers contained in such deeds. Default was made in the payment of the interest after the 4th of June, 1877, and also in paying taxes on the land. The trustee, on the application of the insurance company, advertised and sold the property, and it was bid in at the sum of $10,000, by the company, and a conveyance was made to the company. The bill was not filed until about three years after the sale of the premises. On a hearing in the court below the relief asked was granted, and a redemption decreed on the payment of the principal, advances for taxes, etc., with interest on the entire amount thus due the company. From that decree the company appeals, and the record is brought to this court, and various errors are assigned.

It is insisted in affirmance of the decree, that previous to the sale it was agreed that appellee should have a reasonable time afterward to redeem. This appellant denies, and insists that if it is proved the agreement is not in writing, the contract is void under the Statute of Frauds. Appellee testified that when De Witt, the president of the company, was in Chicago, in June previous to the sale, such an arrangement was made between them. This is denied by De Witt. Their evidence is clearly and positively contradictory, and to determine which has sworn truthfully we must look to the attending circumstances that may corroborate the one or the other, and also to the testimony of other witnesses who testified in the case. De Witt is to some extent corroborated by Gallery, who testifies he was a clerk in the office of the company, and testifies that he was present at the interviews between De Witt and appellee, and that he heard no such agreement made. He states he believes he heard all the conversation between them, but heard nothing of the kind. On the other hand, Warfield, the general agent of the company for this State, largely corroborates the statement of appellee. He testified he heard them conversing on the subject, and De Witt said to appellee that he did not want to report this loan to twenty-seven States with so much over-due interest,--that he preferred to report it as real estate. He said the company did not want the property,--did not want to speculate on appellee's misfortunes. All the company wanted was the money due, but he could not report it with so much over-due interest,--that he must foreclose, and perfect the title. He also testified that De Witt said to appellee he did not want a loan showing so much back interest, and therefore he must foreclose. Appellee asked, in that case, how long a time De Witt would give to redeem, and he replied: “We won't agree to carry this forever, but if you come in within a reasonable time with your money, you can have the land. We do not want it, nor do we want to make money out of your misfortunes.” The witness further says, before the sale it was his understanding that appellee would come within a reasonable time and pay up. This scarcely leaves a doubt that appellee's version of the matter is the true one, and there was an arrangement that he might redeem within a reasonable time after the sale.

But if that was not sufficient, the attending circumstances remove all doubt. Before the sale the company had the property valued by two experts, and one of them fixed the value at $45,000, and the other at $48,000, and the debt, interest and advances in payment of taxes, etc., at the time of sale did not exceed $27,000, all told. Appellee had made arrangements with Moran to advance the full amount of the debt, interest and costs, and buy the property at the trustee's sale, and give appellee time to redeem; but on conversing with Warfield, the general agent, he said he would carry out the arrangement appellee had made with De Witt, when Moran replied the terms were better than he could give appellee, and he would not purchase. With this understanding between appellee, Moran and Warfield, the latter was permitted to bid in the property at $10,000, to save commissions to the trustee on the sale. In view of these facts, with our knowledge of human nature, is it possible for any sane man to believe that appellee would have stood by, when Moran was present, ready, and fully prepared to bid and pay the full amount, and lose $20,000, and leave an indebtedness of about $17,000 on this debt against him, when it could and would have been prevented, unless he had assurances of time to redeem, on which he believed he could rely? It is incredible he would not have...