Bradbury v. Carter

• Decision Date: 18 June 1923
• Docket Number: 3191.
• Citation: 291 F. 363
• Parties: BRADBURY v. CARTER et al.
• Court: U.S. Court of Appeals — Seventh Circuit

291 F. 363

BRADBURY v. CARTER et al.

No. 3191.

United States Court of Appeals, Seventh Circuit.

June 18, 1923

Lott R Herrick, of Farmer City, Ill., for plaintiff in error.

Thos E Gillespie, of Springfield, Ill., for defendants in error.

Error on judgment for $3,612.09 against plaintiff in error.

The declaration avers that J. and L. Kaestner made to Carter and McClain (the defendants in error) a note for $8,355, secured by mortgage upon certain Iowa lands, and that the note and mortgage were for purchase money of the lands which were bought by Kaestners from Carter and McClain, that afterwards Kaestners deeded the lands to one Wise, subject to the mortgage, and that Wise conveyed them to Bradbury, the plaintiff in error (the deed to Bradbury providing that the conveyance is subject to the mortgage encumbrance, which the grantee assumes and agrees to pay); that afterwards, the mortgage note being due and unpaid, Carter and McClain foreclosed, and upon the foreclosure and sale there was a deficiency of $3,700, for which amount and interest this suit was brought against Bradbury.

Bradbury in his second amended plea avers that after the lands were deeded to him he deeded them to one Mickelberry, and that in the deed Mickelberry assumed and agreed to pay the same mortgage incumbrance; that afterwards in the District Court of the United States for the Eastern District of Illinois Carter and McClaim sued Mickelberry for failing to pay the mortgage indebtedness in accordance with this provision in the deed to him, and that in such suit Carter and McClain obtained a judgment against Mickelberry for $250, which was afterwards affirmed by this court; and that by reason of these facts Carter and McClain are barred from maintaining this suit against Bradbury. Additional pleas, A, B, C, and E, state this defense in different ways.

The amended third plea avers that the mortgage note did not represent a bona fide transaction between the Kaestners and Carter and McClain; that to the knowledge of Carter and McClain, Kaestners were then insolvent, and that the note and mortgage transaction was in pursuance of a conspiracy between Kaestners and Carter and McClain to make it appear that the land in question had much larger value than its real worth and that to that end a mortgage be given for very materially more than the real value of the land so that some person of financial responsibility might be thereby induced to believe that the land was worth far more than its market value and a deal be worked up whereby he would assume and pay the mortgage, and that in such transaction Kaestners would share with Carter and McClain the fruits of the conspiracy; that the transaction between Kaestners and Carter and McClain was not bona fide, but was contrived only to make it appear that the lands had far more than their real market value; that Carter and McClain and Kaestners arranged with one Wise to take a deed of the property subject to the mortgage but containing no agreement to pay it, and that Wise was fraudulently to represent to Bradbury that the market...