Benckendorf v. Streator Federal Sav. & Loan Ass'n

• Decision Date: 26 March 1953
• Docket Number: No. 10661,10661
• Citation: 111 N.E.2d 572,350 Ill.App. 43
• Parties: BENCKENDORF et al. v. STREATOR FEDERAL SAVINGS & LOAN ASS'N et al.
• Court: United States Appellate Court of Illinois

Page 572

111 N.E.2d 572

350 Ill.App. 43

BENCKENDORF et al. v. STREATOR FEDERAL SAVINGS & LOAN ASS'N et al.

No. 10661.

Appellate Court of Illinois, Second District.

March 26, 1953.

Clyde E. Mitchell, La Salle, for appellant.

W. D. Jones, Streator, for appellee.

WOLFE, Justice.

The appellants, Arthur Benckendorf and Nellie Benckendorf, his wife, appeal from an order of the circuit court of La Salle County dismissing their cross complaint for redemption of their homestead property which had been sold to appellee, Alfred Kohrt, at a foreclosure sale. Appellants had remained in possession of the property during the redemption period and at the expiration thereof, Kohrt, the appellee, filed his petition for a writ of assistance to secure possession of the property, and appellants filed their cross complaint for redemption.

Appellants' cross complaint alleged that appellee, Kohrt, had orally agreed before the expiration of the redemption period to extend the period and to give appellant, Benckendorf, ample notice when he wanted his money and that in reliance upon this agreement appellants had made valuable improvement to the property and had not redeemed the property, although they could and would have done so in the absence of Kohrt's representations and inducements. They prayed that the court determine the amount due Kohrt and that the court fix a reasonable time within which they should comply with the decree, pay the sum due and procure a deed from appellee.

Appellee filed a motion to dismiss the cross complaint on the grounds that the complaint showed on its face that the alleged agreement was without consideration and without mutuality. This motion was sustained, the cross complaint dismissed and appellants appeal to this court to reverse that order of dismissal.

The sole question in this case is whether the complaint stated a good cause of action. This Court in the case of Diggins v. Axtell, 196 Ill.App. 480, had occasion to pass upon the same question that is raised in this case. In the Diggins case we used this language: 'The controlling question involved is whether the appellee Axtell, positively or by necessary implication, extended the time for the redemption of the property in question, while the right of redemption existed. The law is well settled that courts of eqity will enforce agreements of this nature, which involve an extension of the statutory or legal period of time for redemption of property from a foreclosure sale. Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Nichols v. Otto, 132 Ill. 91 ; Davis v. Dresback, 81 Ill. , 397; Pensoneau v. Pulliam, 47 Ill. 58; Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368 .'

In Wright v. Logan, 288 Ill.App. 481, 6 N.E.2d 265, 269, it is stated: 'It is well settled in this state that courts of equity will enforce oral agreements involving an extension of the statutory legal period of twelve months for the redemption of property from a foreclosure sale; especially in cases where the mortgagor has been fraudulently induced to rely upon the representations of the creditor, and has been so lulled to sleep as to allow the period of redemption to expire, without any effort to redeem. However, the latter element is not presented by the testimony in this case. * * * It is clear from the evidence that the plaintiffs had a wellgrounded belief, based upon statements made by the defendant, that they might redeem their property either before or after the equity of redemption period had expired, and that relying on such statements, they expended $597 in making improvements on the premises sold under foreclosure, which could be of no benefit to them after such right of redemption had expired.'

The same question was before this Court in the case of Honnihan v. Friedman, 13 Ill.App. 226. There, as in the case we are now considering, it is insisted there was no consideration for the promise to extend the time to redeem the premises. In the Honnihan case we there say: 'It is insisted on the part of counsel for appellee, that there is no consideration for the agreement, that there was no specified time for the fulfillment, and that the bill does not allege a mutual agreement. In this case the consideration that is claimed on the part of the appellant is, that he gave up the legal right to redeem within the time required by law upon the promise that the time should be extended at least six months. * * * The right to redeem during the twelve months is a mere option to redeem or not on the part of the owner of the land sold, then, if a further consideration passes for an extension of that option six months longer, it would seem to be a valid contract, without any absolute agreement that he would redeem within the extended time.'

In Ogden v. Stevens, 241 Ill. 556, 89 N.E. 741, 743, our Supreme Court in passing upon the exact question as raised in the present appeal, uses this language: 'It is next contended by appellant that his several promises relied on by appellee were void under the provision of the statute of frauds, which is set up and relied on in his answer. This position is untenable. A verbal agreement to extend the time for redemption from a judicial sale is valid and not affected...