Austin v. Underwood

• Decision Date: 30 April 1865
• Citation: 1865 WL 2842,37 Ill. 438,87 Am.Dec. 254
• Parties: EDWARD W. AUSTINv.ALEXANDER H. UNDERWOOD.
• Court: Illinois Supreme Court

37 Ill. 438

1865 WL 2842 (Ill.)

87 Am.Dec. 254

EDWARD W. AUSTIN

v.ALEXANDER H. UNDERWOOD.

Supreme Court of Illinois.

April Term, 1865.

APPEAL from Court of Common Pleas of the city of Elgin; Hon. RICHARD G. MONTONY, J

This was an action of ejectment by Austin against Underwood. Verdict and judgment were for defendant in the court below. Plaintiff appeals to this court. The facts appear in the opinion.

SYLVANUS WILCOX, for appellant.

PLATO & SMITH, for appellee. Mr. JUSTICE BREESE delivered the opinion of the court:

This was an action of ejectment in the Common Pleas of the city of Elgin in the county of Kane, brought by appellant against appellee, for the Northeast fraction of the Southwest quarter of section 29, Township 42 North, in range 8 East, containing 55 1/2 acres, a timber lot adjoining containing four (4) acres, and another piece, adjoining on which the defendant's house and buildings were situated in which he lived, containing twenty-one (21) acres. Trial by jury and verdict and judgment for the defendant, and an appeal to this court.

The appellant claimed title to the premises by purchase, under a trust deed executed April 4th, 1858, by appellee and wife, to J. C. Austin, to secure five promissory notes executed to E. W. Austin, of even date with the trust deed. Default having been made, the trustee, J. C. Austin, after due notice, sold the land to E. W. Austin, in three separate parcels. The piece containing 55 1/2 acres, for the sum of five hundred and twenty-six 9-100 dollars; the four acre tract for forty-five 60-100 dollars, and the tract containing twenty-one acres, for five hundred and sixty-eight 22-100 dollars, in all, amounting to eleven hundred and eighty-nine 91-100 dollars. The proceedings under the trust deed are all regular, but there was no release of the homestead right by appellee to the trust deed. It was proved, appellee had a small house and barn on the twenty-one acre tract, and lived on it August 11, 1858, had lived there with his family six or eight years; in 1854 or 1855, appellee purchased the 55 acre tract, and the four acre tract of Dibb, and since that time has occupied the whole farm; all the three pieces of land adjoining one another, and worth ten or twelve dollars per acre; appellee had worked the Dibb tract, but no one had lived on it, since Dibb sold to appellee and left.

The appellant then read in evidence, a certified copy of a mortgage deed, dated March 31st, 1855, executed by appellee and wife to the appellant, reciting, that he was indebted to appellant in the sum of $987.40 by his five notes of even date, one of them due one year after date, and four payable yearly thereafter, at ten per cent. payable annually, and to secure the payment of these notes appellee granted, bargained and sold to appellant the 55 and 21 acre pieces of land. In this mortgage there was no power of sale or release of the homestead. It was duly acknowledged and recorded.

On the 11th of August, 1858, appellant released this mortgage to appellee, which release was acknowledged August 11th, and recorded September 3d, 1858.

The appellant also proved by Thomas Dibb and Mary Dibb, that she being the owner of about sixty acres of land in the town of Dundee in Kane county, which, it is not denied, is the 55 1/2 and 4 acre pieces, conveyed the same to appellee, by...