Babcock v. Lisk
| Decision Date | 30 September 1870 |
| Citation | 1870 WL 6635,57 Ill. 327 |
| Parties | ELIJAH C. BABCOCK et al.v.ORRA M. LISK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Mr. JOHN J. GLENN, for the appellants.
Messrs. STEWART & PHELPS, for the appellee.
This was a bill filed in the circuit court of Warren county, by the appellee, against the appellants and one Elijah F. Randall, to foreclose a mortgage. The appellants were judgment creditors of the mortgagor, Randall, and at a sale under a judgment against him, became the purchasers of the land covered by the mortgagc. The ground upon which a reversal is sought, is, that the decree is rendered for a larger sum than that stated in the mortgage. The difficulty arises on the following clause contained in the mortgage, viz:
“Whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of $70, with three years interest thereon, secured to be paid by one certain promissory note, dated September 8th, for the sum of $70, with interest: Now, therefore, this indenture witnesseth, that the said party of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said promissory note above mentioned, and also in consideration of the further sum of five hundred dollars to him in hand paid, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed” the premises described in the mortgage deed.
The form of the mortgage is one of the usual blanks, and was, doubtless, filled up by a person inexperienced in drawing legal papers. It does not seem to us that the sum of “five hundred dollars” was named in the mortgage as a nominal consideration. The true construction of the mortgage, is that which was given to it by the circuit court, viz: that it was given to secure the promissory note of $70, and also the sum $500 of other indebtedness. The fact that the $500 was not evidenced by any note or bond outside of the mortgage itself, rendered it entirely competent for the court to hear parol evidence to show the nature and character of the indebtedness, and when contracted. It was indispensable that such proof should be made. This was, in no sense, enlarging the terms of the mortgage. It was simply showing the true amount of the consideration of the deed,...
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