Brainard v. Hudson

• Decision Date: 30 June 1881
• Citation: 1881 WL 10720,103 Ill. 218
• Parties: BENJAMIN H. BRAINARD et al.v.E. G. HUDSON et al.
• Court: Illinois Supreme Court

103 Ill. 218

1881 WL 10720 (Ill.)

BENJAMIN H. BRAINARD et al.

v.E. G. HUDSON et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 22, 1881.Rehearing denied June Term, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on writ of error to the Circuit Court of Logan county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. BEASON & BLINN, for the plaintiffs in error.

Mr. N. M. BROADWELL, for the plaintiff in error Brainard.

Mr. E. LYNCH, Messrs. HOBLIT & STOKES, and Mr. E. G. HUDSON, for the defendants in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

On the 11th day of April, 1866, John L. Primm, being the owner of a certain farm in Logan county, consisting of one hundred acres of land, and also thirty acres of timber land near the farm, conveyed the property, by deed of that date, to his son, James H. Primm, for the expressed consideration in the deed of $5000. The deed was recorded April 13, 1866. At the time the deed was executed and delivered, James H. Primm gave John L. Primm a mortgage on the land to secure the payment of the purchase money, $5000, according to the tenor and effect of five promissory notes, for $1000 each, due in one, two, three, four and five years, with interest after due at ten per cent. This mortgage was not recorded until after the bill was filed. John L. Primm, however, remained in possession of the farm until December 2, 1873, when he died intestate. On the first day of October, 1874, James H. Primm borrowed of Benjamin H. Brainard $2500, and gave a trust deed on the farm to secure the payment thereof, which was placed on record the day it was executed. This bill was filed by the administrator of the estate of John L. Primm, deceased, against James H. Primm, Benjamin H. Brainard, and others, to foreclose the mortgage given to John L. Primm on the 11th day of April, 1866. Two questions are presented for our consideration by this record. The first arises on the master's report, to whom the cause was referred, and who stated the account between the parties. The second question presented is, whether the mortgage given to Brainard, although subsequent in date, is entitled to priority over the mortgage given to John L. Primm, for the reason it was first on record.

It appears that the mortgagee, John L. Primm, occupied the premises from the time he conveyed to his son, continuously, to the date of his death. During this time the mortgagor made several payments on the notes, and he also claimed that the rent of the premises should be applied as a payment on the mortgage. Four hundred and twenty dollars of the money loaned by Brainard to James H. Primm was used to pay off a mortgage on the premises which had been executed by both the Primms to one Lucy Wright, after James H. Primm had obtained a deed from his father. In stating the account Brainard claims that the $420 should not be applied as a payment on the Primm mortgage, but as he advanced the money to relieve the premises from a mortgage lien, in equity he should be subrogated to the rights of Lucy Wright in the mortgage which she held, and which his money paid off. The court, in order to adjust the account between the parties, referred the cause to the master to state an account between them. The master, after taking the proofs of the respective parties, stated an account, and after allowing various payments in rents and moneys on complainant's mortgage, found there was still due thereon $3442.76, February 6, 1879. The $420 paid by James H. Primm to Lucy Wright, to discharge her mortgage, was allowed by the master as a payment on complainant's mortgage of date October 3, 1874, the time when the money was paid. In stating the account the master allowed no interest on complainant's notes until April 11, 1869, nor did he charge complainant with the rents until that time, and no rents were allowed after the death of John L. Primm. The report of the master, after having been examined by the court, was approved, and this decision of the court is relied upon as error.

It is contended that the master ought to have charged complainant with the rent of the land from 1866 to 1869, and that the sum of $420, paid Lucy Wright in satisfaction of her mortgage out of the money Brainard loaned, should not have been credited on complainant's mortgage, as was done by the master, but that Brainard should, in any event, have been subrogated to the rights of Mrs. Wright in the premises to the extent of $420, and decreed a prior lien for that amount. While the mortgagee occupied the premises from 1864 to 1869, yet we do not think he should in this proceeding be charged with rents during that period, as it is apparent from the evidence that during those years James H. Primm lived with his father, and the...