Ballinger v. Bourland
| Decision Date | 30 September 1877 |
| Parties | JOHN BALLINGERv.BENJAMIN L. T. BOURLAND et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding.
On the 23d day of November, 1868, John Ballinger and wife made their deed of trust of eight hundred acres of land, in Livingston county, in this State, to Benjamin L. T. Bourland, to secure the payment of $17,000, borrowed money, to the Ætna Life Insurance Company, at Hartford, Conn., on the 1st day of January, 1874, with ten per cent per annum interest, payable on the 1st day of January in each year.
Default having been made in payment of the interest due January 1, 1871, and there being a provision in the deed making the principal due in such contingency, on March 23, 1871, Bourland, the trustee, after notice, in pursuance of the terms of the trust deed, sold the lands at public sale for the sum of $20,748, and Samuel Crumpton became the purchaser, to whom Bourland executed a trustee's deed of the lands.
Ballinger had, before, on the 20th of May, 1870, executed to William W. Crumpton, a brother of Samuel Crumpton, a quitclaim deed of the lands, taking back from him a bond for their reconveyance upon the payment of $3744 on or before January 1, 1871.
Ballinger filed his bill in chancery, to the October term, 1871, of the Marshall circuit court, against Bourland, the Ætna Life Insurance Company, and Samuel Crumpton, to set aside the trustee's sale made by Bourland to Samuel Crumpton, on various grounds--that Bourland made the sale in violation of his previous agreement to postpone it; that the notice was insufficient; that the sale was made on credit, instead of for cash, as the trust deed required; that there was a conspiracy between Bourland and Crumpton to cheat complainant out of his lands; that complainant supposed the trust deed to be an ordinary mortgage, and that there was usury in the loan from the Ætna Insurance Company.
The respective defendants answered, denying the charges of the bill. Afterward, September 15, 1874, the bill was amended, making Edith Ballinger, wife of John Ballinger, a co-complainant with him, and making William W. Crumpton a party defendant.
The amendment set up that the premises were the homestead of the complainant; that the contents of the trust deed were not made known to the wife by the acknowledging officer, nor did he examine her in respect thereto as required by law; that she supposed the trust deed to be an ordinary mortgage, and would never have signed the same had she known its purport; that the quitclaim deed of May 20, 1870, to William W. Crumpton, was a security to secure the payment of an usurious loan of money, and asks to redeem upon payment of the amount legally due, and for an account against the defendants.
William W. Crumpton answered, denying the charges of the bill, and afterward, upon proofs taken on final hearing, the circuit court dismissed the bill. The complainant, John Ballinger, appeals. Messrs. CRATTY BROS., for the appellant.
Messrs. PILLSBURY & LAWRENCE, and Mr. H. W. WELLS, for the appellees.
All the foundation which there appears to be for the charge of usury in the loan of $17,000 from the insurance company is, that the loan was obtained by Ballinger, through the agency of Bourland, who resided at Peoria, in this State, and that Bourland charged Ballinger a commission of five per cent on the amount for effecting the loan, and $100 for going to Chicago and procuring there a release of the premises from a prior mortgage incumbrance upon them of $16,000, which charges Ballinger paid to Bourland. There appears but the simple transaction itself, without any pretense, by the testimony, that the insurance company was in any way privy to the receiving of the money by Bourland, or that the agreement therefor was with the knowledge or authority of the insurance company, or that it derived any benefit therefrom.
It seems to be abundantly settled by the...
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