Bent v. Coleman

• Decision Date: 31 January 1878
• Citation: 89 Ill. 364,1878 WL 10040
• Parties: LUCINDA G. BENTv.MARY B. COLEMAN et al.
• Court: Illinois Supreme Court

89 Ill. 364

1878 WL 10040 (Ill.)

LUCINDA G. BENT

v.MARY B. COLEMAN et al.

Supreme Court of Illinois.

January Term, 1878.

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Mr. IRA J. BLOOMFIELD, for the appellant.

Messrs. GAPEN & EWING, and Mr. WALTER M. HATCH, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, in the McLean circuit court, exhibited by Mary B. Coleman and Louisa B. Blenkison, complainants, and to which Origen M. Coleman, Francis Coleman, Sarah Coleman and Lucinda G. Bent, with others were made defendants, to foreclose a mortgage alleged to have been executed by Origen M. Coleman to complainants on February 18, 1874, to secure the payment of certain promissory notes executed on that day to complainants, the premises described in the deed of mortgage being lot No. 3 of the north-west quarter of section No. 34, township 24 north, range 2 east of the third principal meridian, containing forty acres of land; also a strip of land part of section 33, excepting out of the first named tract a half-acre tract of land deeded to Myron T. Coleman, describing the same by metes and bounds, all lying in McLean county, State of Illinois.

Francis Coleman and Sarah Coleman put in their answers to the bill, claiming and insisting they had a mortgage on the same premises, executed by O. M. Coleman to them, of a date prior to that of complainants' mortgage, and which was duly recorded, which mortgage was executed to secure the payment of one thousand six hundred dollars which they, as executors of the estate of Martin Coleman, had loaned to the mortgagor, O. M. Coleman. They also filed their cross-bill setting up these facts, alleging that the mortgage was executed to them on May 15, 1873, and recorded on December 26, 1873; that it was intended by said mortgage to convey the same identical tract of land as described in the bill of complaint, but under the following description: Beginning two hundreds north of the south-west corner of section 34, etc., while it was intended the description should be, beginning two hundred rods north of the south-west corner, etc.

The bill prayed for a correction of the mistake, and that their mortgage be decreed a first lien on the premises.

Lucinda G. Bent put in her answer to the original bill and to the cross-bill, claiming and alleging that the indebtedness claimed is fraudulent, and denies that O. M. Coleman ever delivered any valid mortgage to the complainants in either bill, but that O. M. Coleman was justly indebted to her in the sum of one thousand eight hundred and fifty dollars with interest, evidenced by two promissory notes, and on December 10, 1874, made and delivered to her a mortgage on the property described in the original bill, which was duly recorded; the said indebtedness being for money actually loaned to Coleman, she having no knowledge of the mortgage mentioned in the original bill or cross-bill. This defendant also filed her cross-bill setting up these facts, and claims that her mortgage is superior and prior to the others described and set up in the original and cross bills, and is the first valid lien on the premises, and had no knowledge of any other lien.

This cross-bill was answered by O. M. Coleman, Mary B. Coleman, Francis Coleman and others, claiming that all the interest of Lucinda G. Bent was merged in a deed from Joseph Carter, assignee in bankruptcy of O. M. Coleman, setting out the bankruptcy proceedings, the appointment of Carter as assignee, and a sale by him of the premises to Lucinda G. Bent, and a sale by her to William A. Watson of all her interest in the premises.

There were replications to the answer, and other proceedings not important to notice.

The cause was referred to a special master, to whose report exceptions were filed by Lucinda G. Bent and others, which were disallowed, and the court decreed, among other matters not necessary to notice, that there was due Lucinda G. Bent on her note and mortgage the sum of one thousand nine hundred and sixty-four dollars and twenty-eight cents, and as to the cross-bill of Francis Coleman and Sarah Coleman, the court found the allegations to be true, and that the defendant, Origen M. Coleman, was, on May 15, 1873, indebted to the complainants as executor and executrix of Martin Coleman, deceased, in the sum of one thousand six hundred dollars for borrowed money, and that, to secure the payment of the same, he executed a mortgage to Francis and Sarah Coleman, which was delivered and recorded; that by mutual mistake the description was written, “Beginning two hundreds north of said south-west corner of section 34,” whereby the word “rods” was left out after the words “two hundreds,” and that each and all of the defendants had due notice of the mistake before they acquired any right, title, interest or equity to the premises, and that the land intended to be conveyed by the mortgage was the same land as herein properly above described, and was the same land mortgaged to the other defendants as lot No. 3 of the north-west quarter of section 34, and that the description in the mortgage executed to Francis and Sarah Coleman by Origen M. Coleman, be amended so as to read, “beginning two hundred rods north of the south-west corner of section 34, township 24 north, range 2 east of the third principal meridian, thence north 40 rods, thence east 160 rods, thence south 40 rods, thence west 160 rods to the place of beginning,” and that the record of each mortgage be so amended as to conform to this description,...