Bowen v. McCarthy

• Decision Date: 15 November 1888
• Citation: 127 Ill. 17,18 N.E. 757
• Parties: BOWEN v. McCARTHY et al.
• Court: Illinois Supreme Court

127 Ill. 17

18 N.E. 757

BOWEN

v.McCARTHY et al.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, First district.

Bill by Florence McCarthy against Elias R. Bowen, Emma J. Walker, Mary L. Lloyd, Josie C. Walker, Carrie E. Walker, Llewellyn H. Lloyd, Thomas Murphy, James Barry, and Emma J. Walker, and Isaac N. Danforth, administrator of Sidney P. Walker, deceased, to foreclose a mortgage. Defendant Bowen appeals.

Edward Roby, for appellant.

James Lloyd, for appellee Mary L. Lloyd.

Burke & Hollett, for appellees Emma J. Walker and Isaac N. Danforth.

Allan C. Story, for appellee McCarthy.

WILKIN, J.

Sidney P. Walker executed and delivered to different persons his certain mortgages, one of which was to appellee Florence McCarthy, on lot 13, block 3, etc., Chicago. Appellant had been in possession of the lot for many years as tenant, and had placed some improvements thereon. He entered under a written lease executed by one Herman, in April, 1857, for nine years; but he paid the rent to said Walker from February, 1863, and, after the expiration of his term under the lease, continued in possession, without any written contract, paying rent to Walker. On the 26th of April, 1866, Walker and appellant had a settlement, and a memorandum then made contains a statement that Walker shall execute a lease of the north 30 feet of said lot to Bowen for five years from May 1, 1866. From about the time of this settlement, Bowen's possession was confined to said 30 feet, and rent was paid to Walker for it alone, but no lease was executed. In 1874, Walker became indebted to Bowen in the sum of $4,600, for which he executed his promissory note due in two years, and to secure the payment of the same also executed and delivered to him a chattel mortgage. This chattel mortgage was, by giving new ones, twice renewed, the last one being dated April 12, 1877. It is in the usual form chattel mortgages in the state, with the exception of a clause in the defeasance which makes it read as follows: ‘Provided, nevertheless, that if the said Sidney P. Walker, his heirs, executors, administrators, or assigns, shall well and truly pay or cause to be paid unto the said Elias R. Bowen, his heirs, executors, administrators, or assigns, the sum of forty-six hundred dollars and interest thereon, according to the tenor and effect of one promissory note, dated September 4, 1874, signed by the party of the first part, [said Walker,] and payable to the order of the party of the second part [said Bowen] in two years after date, with interest at the rate of ten per cent. per annum, (said note being extended two years from maturity thereof, upon condition that the rent of the north 30 feet of lot 13, block 3, in W. 1/2 of W. 1/2 of N. E. 1/4 sec. 17, and known as 15 Center avenue, Chicago, shall be applied to pay interest on said note, or the principal thereof, so long as any portion thereof remains unpaid,) then and from thenceforth these presents and everything therein contained shall cease, and be null and void.’ Sidney P. Walker died January 22, 1884. August following appellee McCarthy filed his bill to foreclose, making those who held other mortgages and appellant Elias R. Bowen parties defendant. The cause was heard in the circuit court of Cook county, before the Hon. M. F. TULEY, and a decree rendered, adjusting the rights of all the parties, to which no exception is taken by any of the defendants except appellant. The decree allowed him to remove all his improvements from said lot, but disallowed his claim to a lien upon the said lot or any part of it. The appellate court affirmed that decree. Appellant bases his claim to a lien upon the north 30 feet of said lot 13 upon that clause in the defeasance of the chattel mortgage above mentioned which is...