Benjamin F. Westlake v. Horton

• Decision Date: 31 January 1877
• Citation: 85 Ill. 228,1877 WL 9529
• Parties: BENJAMIN F. WESTLAKE et al.v.HOBART S. HORTON et al.
• Court: Illinois Supreme Court

85 Ill. 228

1877 WL 9529 (Ill.)

BENJAMIN F. WESTLAKE et al.

v.HOBART S. HORTON et al.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. HAY, GREENE & LITTLER, for the appellants.

Messrs. JOHN M. & JOHN MAYO PALMER, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This is an appeal from a decree of the circuit court of Sangamon county, sitting in chancery, in a proceeding therein instituted by Hobart S. Horton, complainant, and against Benjamin F. Westlake and Albert Fishall, defendants, praying for an account and relief under the allegations of the bill of complaint. These allegations were, substantially, that complainant, being indebted to Westlake in the sum of $3500, did, on the 24th of September, 1868, being seized in fee thereof, execute to Westlake, at his request, a mortgage on the southeast 1, town 6 north, range 6 west, in Pike county, to secure the payment of that sum, which was duly recorded. The mortgage is in the usual form with the usual conditions. It is then alleged, that Westlake, being desirous of additional security for this debt, and for that purpose and no other, and for no other consideration, complainant, for the purpose of amply securing Westlake, on September 23, 1869, executed and delivered to Westlake a deed, absolute in form, for the expressed consideration of $4000, for one hundred and twenty-six acres off the south side of section one, in the same township and range, which was duly recorded, alleging that this deed, though absolute on its face, was intended by the parties to secure this same sum of money for which the first mortgage was given, and for no other consideration or indebtedness, and that it was distinctly understood and agreed to by the parties, that upon the payment of the money due by the first mortgage, Westlake would acknowledge satisfaction thereof and reconvey to complainant the last described piece of land. It is then alleged, the sum, so secured, has been fully paid by complainant, principal and interest, and that Westlake refuses to reconvey. It is further alleged, that during all the time, complainant has been and still is in possession of both of these tracts of land, the first of which is his homestead, and of the rents and profits, paying the taxes, etc. It is then alleged, that Westlake, under the false pretense that eighteen hundred dollars were due on the mortgage, and claiming that the second deed was an absolute deed, conveyed to Fishall the last described tract of land, and the mortgage for the tract first described, he, Fishall, having notice of al the facts alleged in the bill; that the conveyance to Fishall was without consideration, and that complainant has demanded of Fishall a reconveyance and a satisfaction of the mortgage.

The defendants put in joint and several answers, insisting on the alleged indebtedness to Westlake, and insisting that the consideration, $4000, expressed in the deed of September 23, 1869, was the true consideration; that this sum was paid by Westlake to complainant as the sole consideration, and that the deed was intended as an absolute deed, and not a mortgage, and there was no agreement for a reconveyance. They deny that the amount due upon the note and mortgage has been paid, but aver there remains due and unpaid thereon about the sum of $1760.50, and that proceedings have been commenced to foreclose the mortgage for the unpaid balance. T...