Baker v. the Bishop Hill Colony.

• Decision Date: 30 September 1867
• Citation: 1867 WL 5261,45 Ill. 264
• Parties: JONATHAN H. BAKER et al.v.THE BISHOP HILL COLONY.
• Court: Illinois Supreme Court

45 Ill. 264

1867 WL 5261 (Ill.)

JONATHAN H. BAKER et al.

v.THE BISHOP HILL COLONY.

Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the Circuit Court of Henry county; the Hon. IRA O. WILKINSON, Judge, presiding.

The facts are stated in the opinion.

Mr. H. BIGELOW, for the plaintiffs in error.

Messrs. BENNETT & VIEDER, for the defendant in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, filed in the Henry Circuit Court, by the Bishop Hill colony, against Jonathan H. Baker and others, to foreclose a mortgage executed by John I. Hall and wife to complainant, and a decree of foreclosure and sale of the mortgaged premises.

To reverse this decree, the defendants have brought the record to this court and assigned several errors. The principal facts are found in the decree of the Circuit Court, and for convenience we here set it out in full as rendered at the October Term, 1866:

“And now, at this day, comes the complainant, by their solicitor, and the defendants, by their solicitors, and the cause coming on to be heard upon the original and supplemental bills and exhibits, the answers of defendants, John I. Hall, Jonathan H. Baker, David Lawson and David P. Wells, copartners doing business under the style of J. H. Baker & Co., and of Truman Roberts, and the evidence taken and filed herein, and the agreement of counsel as to facts, and the court, having now heard the allegations, proofs and arguments of the said parties respectively, and being now advised in the premises, doth find: That in 1855 or 1856, defendant John I. Hall entered into possession of the quarter section, including the mortgaged premises; that while so in possession, and in December, 1856, said John I. Hall purchased a tax title to said quarter section of defendants, J. H. Baker & Co., for the sum of $1,000, paid the sum of $50 down, and took a bond for a quitclaim deed, and executed notes therefor for $950; one for $200, due in five months, one for $250, due in one year, one for $250, due in two years, and one for $250, due in three years, said notes bearing six per cent interest; that said bond for a deed was never recorded; that in March, 1857, defendant John I. Hall acquired the patent title to the east half of said quarter section, including the mortgaged premises; that on or about the 20th day of March, 1858, defendant John I. Hall and wife, Eliza Hall, being in possession thereof, executed to complainants a mortgage deed, to secure two promissory notes of said John I. Hall to complainants, dated March 9, 1858, one for the sum of $650.50, due in one year from date of said notes, and the other for the sum of $706.66, of the same date, due in two years from the date of said note, with interest respectively at the rate of ten per cent, upon sixty-seven and one-half acres on the north part of the east half of the north-east quarter of section number twenty-nine (29), township number fourteen (14), north of the base line, and range number four (4), east of the fourth P. M.; that said mortgage was recorded in the recorder's office of Henry county, on the 31st day of March, 1858; that at and before the time of the taking of said mortgage deed, complainant examined the record of said mortgaged premises, found the title of record apparently in defendant John I. Hall, under a deed from J. M. Wiley, conveying the patent title thereto; and that complainant had no notice of the existence of the said bond for a deed from the said defendants, J. H. Baker & Co., to defendant John I. Hall; that when the first two notes executed under said bond for a deed had become due, suit was brought thereon, and judgment against said John I. Hall recovered and execution issued thereon; that on or about the 11th day of June, 1860, an agreement was entered into between the defendants J. H. Baker & Co. and John I. Hall, by which said Hall delivered up to said Baker & Co. the possession of the said east half of said quarter, and one Church was put in possession thereof as the tenant of said defendants J. H. Baker & Co.; that said Baker & Co. delivered up to said Hall his two notes on which no judgment had been rendered, and executed to him a receipt for the judgment upon the other two notes mentioned in the bond of said J. H. Baker & Co.; that said arrangement and agreement was made with full knowledge, by all the parties thereto, of the mortgage by the defendant Hall and wife to complainant, and of the rights of complainant under said mortgage; and that the said arrangement and agreement by said named defendants, was without any knowledge or consent of complainant; that since the said 11th day of June, 1860, the said defendants, J. H. Baker & Co., have been in possession of the said mortgaged premises, and enjoyed the rents and profits thereof for a portion of the time; that defendant David P. Wells died intestate on the 7th day of April, 1862, leaving a widow and three children, who are duly made parties to this cause by service of process herein, and the appointment and answer of a guardian ad litem for said children. Whereupon the court doth now further find and adjudge: that by the said mortgage set forth in complainant's bill, the complainants acquired all the right, title and interest, legal and equitable, held and possessed by said defendant John I. Hall, at the time of the execution of said mortgage, and that by the subsequent arrangement made on the 11th day of June, 1860, between the defendants John I. Hall and J. H. Baker & Co., the latter took back the title and possession of said east half of said northeast quarter of section twenty-nine aforesaid, subject to the intervening rights which had accrued in favor of complainants, and that complainants are entitled to pay and discharge the indebtedness of defendant John I. Hall, to defendants J. H. Baker & Co., for the east half of said mentioned quarter section, remaining unconveyed by said defendants J. H. Baker & Co., or to have the same paid by a sale of the said east half of said quarter section, including said mortgaged premises, after allowing on said indebtedness against said defendant John I. Hall, the amounts with which they may be justly chargeable for rents and profits received by them, and the amount paid by J. M. Wiley; and that, for the amount of said indebtedness that may so be and remain due and owing to said defendants J. H. Baker & Co., they have a prior claim upon the said premises; and, inasmuch as it is uncertain as to what amount has been received by the defendants J. H. Baker & Co. since the year 1860, for rents and profits of said premises, --

It is, therefore, ordered by the court, that this cause be referred to the master in chancery of this court; and that an accounting be had before said master; and that said master in chancery report to this court: First, the amount due on the mortgage and notes in the bill mentioned, up to date of report; second, the amount of the rents, issues and profits of said quarter section since 1860, with which defendants J. H. Baker & Co. may be chargeable; third, the amount of taxes which J. H. Baker & Co. have paid, in pursuance of said bond, on said quarter section; and fourth, the balance of indebtedness remaining due to defendants J. H. Baker & Co., by defendant John I. Hall, on said bond of J. H. Baker & Co. to defendant John I. Hall, both before and after the allowance of such sum or sums as defe...