Akin v. Cassiday
| Decision Date | 20 November 1882 |
| Citation | 105 Ill. 22,1882 WL 10472 |
| Parties | EDWARD C. AKINv.ANN CASSIDAY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.
Mr. GEORGE S. HOUSE, for the appellant.
Mr. GEORGE J. MONROE, and Mr. THOMAS H. HUTCHINS, for the appellee.
Appellee filed a bill in equity, in the Will circuit court, on the first day of November, 1878, to foreclose a mortgage on certain real estate in that county. The mortgage was executed by Charles H. Macomber, as conservator of Martha Palmer, to secure a promissory note of that date, for $500, payable to appellee in two years, with ten per cent interest, executed by him in like manner. The bill alleges that Macomber had died after the note and mortgage were executed, and appellant was appointed conservator of Martha Palmer in his stead. An answer was filed by appellant, by which he denied that Macomber was ever legally appointed such conservator, and he had no power to act as such, and having no such power, the note and mortgage given by him to appellee were void. He also filed a cross-bill, in which he alleged the same facts, and prayed that the mortgage be declared void, as a cloud on the title. To this cross-bill there was an answer filed. A hearing was had on the original and cross-bills, and a decree rendered, under the cross-bill, that appellant pay to appellee the amount then found to be due on the note, by the 5th day of November, 1881, as a condition to the relief sought by the cross-bill, and that upon its payment appellee should make and deliver to appellant a sufficient release. This decree was rendered on the 13th day of October, 1881. On the 12th day of November following, the case was again heard, and a decree was rendered for $785.40, and that amount was ordered to be paid within thirty days, and in default thereof the premises were ordered to be sold. This decree further orders that the cross-bill be dismissed for a failure to pay appellee as required by the former decree of the court in the cause. These hearings were had, and the decrees were rendered, at the same term of the court.
The decree under the cross-bill provided, in terms, that on a failure to pay the amount found by the time named, the cross-bill should be dismissed. The terms of the decree not having been complied with, the cross-bill stood dismissed. The decree prescribed as the terms upon which the relief would be granted, the payment of the money within the time named, and the failure to comply operated to vacate the decree and to dismiss the cross-bill; but if it were not so, the decree is annulled and rendered inoperative by the decree of the 12th of November, by formally dismissing the cross-bill. The only decision of the case is that of November 12, 1881, for $785.40. There is no pretense that on this record more than that sum, with interest and costs, can be collected by appellee from appellant on the estate of Martha Palmer, in his hands as conservator, nor did appellee in her bill claim more than that sum. It would be wholly unjustified to hold...
To continue reading
Request your trial
-
Thomas v. Thomas
...either on answer or motion or demurrer. Edgerton v. Young, 43 Ill. 464;Morgan v. Smith, 11 Ill. 194;Wing v. Goodman, 75 Ill. 159;Akin v. Cassiday, 105 Ill. 22;Newberry v. Blatchford, 106 Ill. 584;Howe v. South Park Com'rs, 119 Ill. 101, 7 N. E. 333. If the court had no other jurisdiction to......
-
Lansingh v. Dempster
...recovery of money only, and no other independent relief is sought. It has been so held in cases of the foreclosure of mortgages (Akin v. Cassiday, 105 Ill. 22;Sedgwick v. Johnson, 107 Ill. 385;Jordan v. Moore, 128 Ill. 56, 21 N. E. 212;Hedley v. Geissler, 189 Ill. 172, 59 N. E. 580); mechan......
-
Reagan v. Hooley
... ... Pinneo v. Knox, 100 Ill. 471;McIntyre v. Yates, 100 Ill. 475;Akin v. Cassiday, 105 Ill. 22;MacDonald v. Dexter, 234 Ill. 517, 85 N. E. 209;Kronenberger v. Heinemann, 190 Ill. 17, 60 N. E. 64. Neither would a ... ...
-
Kronenberger v. Heinemann
...mortgages on real estate do not involve a question of freehold. Pinneo v. Knox, 100 Ill. 471;McIntyre v. Yates, 100 Ill. 475;Akin v. Cassiday, 105 Ill. 22;Sanford v. Kane, 127 Ill. 591, 20 N. E. 810. The case of Smith v. Jackson, 153 Ill. 399, 39 N. E. 130, relied upon by plaintiff in error......