Fetrow v. Merriwether

• Decision Date: 31 January 1870
• Citation: 53 Ill. 275,1870 WL 6191
• Parties: JOHN FETROWv.REUBEN H. MERRIWETHER.
• Court: Illinois Supreme Court

53 Ill. 275

1870 WL 6191 (Ill.)

JOHN FETROW

v.REUBEN H. MERRIWETHER.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. ARTHUR J. GALLAGHER, Judge, presiding.

This was an action of ejectment, brought by Reuben H. Merriwether against John Fetrow, to recover a certain eighty acre tract of land. The plaintiff, on the trial, deduced title to the land from the general government to himself, and on his chain of title no question is raised. The defendant, to defeat a recovery, attempted to set up a paramount outstanding title. He first introduced a mortgage on the land from E. M. Thorpe, through whom the plaintiff derived title, to J. Park, to secure the payment of certain promissory notes. This mortgage contained this condition: “That if any of the notes prove to be insolvent or worthless, the mortgage is to be good and valid, otherwise to be null and void.” The defendant contended there was a breach of condition in this mortgage, and hence he had the right to enter and hold the premises, by virtue of the conveyance from Park, through whom he claims. It appears that subsequent to the execution of the mortgage from Thorpe to Park, Thorpe conveyed twenty acres of the land in question to Benjamin Balliett, and the remainder to Amanda Day, Balliett and Day afterward conveying by quit claim deed, to the plaintiff. The defendant claimed that the deeds from Thorpe to Balliett and Day, were both in fraud of Thorpe's creditors; that the plaintiff was not a purchaser in good faith, but had notice of all the rights of the defendant, who was in possession, and putting valuable improvements on the land, and had been doing so for three years; that the plaintiff had told Balliett, two years before purchasing from him, that his, Balliett's, title was of no account, and that the plaintiff had paid to Balliett and Day a mere nominal consideration for the land. The plaintiff testified he did not pay Balliett anything for his interest in the land, but agreed with him to prosecute the suit, and if he gained it, Balliett was to have ten acres of the land--if the suit was lost, nothing; and that he paid Mrs. Day ten dollars for her deed, and was not to pay any more. By consent, the cause was tried by the court without the intervention of a jury, and judgment entered for the plaintiff; and to reverse this judgment, the defendant appealed.

Messrs. MALONE & IRWIN, for the appellant.

Messrs. EMERSON, SMITH & EMERSON, and Messrs. NELSON, ROBY & PEDDECORD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought in the court below by appellee, for the recovery of eighty acres of land from appellant. Appellee, on the trial below, deduced title to the land from the general government to himself, and on his chain of title no question is raised. Appellant, to defeat a recovery, attempted to set up a paramount outstanding title. He first introduced a mortgage on the land from E. M. Thorpe, through whom appellee derives title, to J. Park, for sixteen hundred dollars. This mortgage contained this condition: “If any of the following promissory notes prove to be insolvent: One promissory note, executed by Alexander Rose on the thirtieth day of March, 1857, to E. M. Thorpe, for the sum of eight hundred dollars, due on or before the fifth of January, 1858; one promissory note, executed by Willis S. Oglesby and Thomas L. Smoat to Francis A. Search, on the first day of January, 1857, and due on or before the first day of January, 1858, and endorsed by said Search to said Thorpe; and one promissory note, executed on the twenty-third day of October, 1856, by George Houseman and Humphrey Houseman to Francis A. Search, for the sum of one hundred and sixty-five dollars, due one year after date; and one promissory note, this day executed by the said ...