Brosseau v. Lowy

• Decision Date: 20 April 1904
• Citation: 70 N.E. 901,209 Ill. 405
• Parties: BROSSEAU v. LOWY et al.
• Court: Illinois Supreme Court

209 Ill. 405

70 N.E. 901

BROSSEAU

v.LOWY et al.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, First District.

Suit by Haiman Lowy and others against Zenophile P. Brosseau. From a judgment of the Appellate Court (110 Ill. App. 16) reversing a decree giving priority to a mortgage held by defendant, Brosseau, he appeals. Affirmed.

The question presented by this suit is the determination of the priority of two certain mortgages or trust deeds. The suit was brought June 20, 1900, by the appellee Haiman Lowy in the circuit court of Cook county to foreclose a trust deed executed by George Gillespie to Anton Boenert, as trustee, to secure the payment of three promissory notes, aggregating $8,000 execued by said Gillespie, payable to his own order, and by him indorsed, dated February 15, 1896, and all payable on or before February 15, 1899, which said notes and trust deed were the property of Auguste Boenert, wife of said Anton Boenert, who pledged them to said Lowy as collateral security for a loan of $6,000 made by said Lowy to Anton Boenert on April 30, 1896. The other party contesting for priority of his mortgage is Zenophile P. Brosseau, appellant here, who is the holder of a promissory note executed by one William Ziese on August 23, 1878, payable to his own order, and by him indorsed, and secured by a trust deed to George Coombs, as trustee, duly acknowledged and recorded on August 27, 1878, which said Ziese trust deed incumbers the same property as the trust deed subsequently executed by George Gillespie, above referred to.

The history of these two trust deeds, and the notes secured by them, may be briefly stated, as follows: August 23, 1878, Anton Boenert, being the owner of the east half of the southeast quarter of section 12, sold and conveyed it to William Ziese, his brother-in-law. August 26, 1878, Ziese executed the note and trust deed now held by Brosseau to secure a loan of $1,500 made to him by George Coombs, the trustee in the said deed, as agent for one Brander. March 30, 1883, Ziese and wife sold their equity in said land to Auguste Boenert for $1,200; nothing being said in the deed of conveyance about the trust deed theretofore executed by Ziese, and the lien thereunder. July 10, 1890, Coombs released the northeast quarter of the southeast quarter of said section from said trust deed, and on November 18, 1891, he also released the south half of the southeast quarter of the southeast quarter of said section from said trust deed; both releases being made at the instigation and request of Anton Beoenert. The Ziese note was executed August 26, 1878. It was for $1,500, and was payable in three years. On it are numerous indorsements of interest paid, and extensions of time for payment, all said to be in the handwriting of Anton Boenert, but not signed by any one. Finally, in February, 1893, as a condition for further extending time of payment of the Ziese note, which was still in the possession of Coombs, as agent, Auguste Boenert was required to give a gold note, running for two years, for the indebtedness, and Coombs still retained the Ziese note and trust deed as collateral security for the payment of the gold note. July 21, 1895, Auguste Boenert and husband conveyed, by warranty deed, the remaining 20 acres not released from the Ziese mortgage (being the premises in controversy) to George Gillespie, which deed was filed for record February 21, 1896. February 15, 1896, Gillespie and wife executed the notes and trust deed now held by appellee Lowy, and on April 30, 1896, Anton Boenert gave the Gillespie notes and trust deed to Lowy as collateral security for the above-mentioned loan of $6,000. May 13, 1896, Auguste Boenert paid the gold note given to Coombs, and she received from him the Ziese note and trust deed, uncanceled. On February 24, 1898, the said $1,500 Ziese note, being then in the possession of Auguste Boenert, was sold by her for $1,250 to the appellant, Brosseau. Neither the deed from Ziese to Auguste Boenrt, nor the deed from Auguste Boenert to Gillespie, makes mention of the Ziese mortgage or trust deed.

The evidence in this case was taken before a master in chancery, and was, under stipulation, read upon the hearing below. The trial court gave priority to the lien of the Ziese mortgage, which secures the note held by the appellant, Brosseau; but on appeal to the Appellate Court the decree of the circuit court was reversed, and an order entered remanding the cause to the circuit court, with directions to that court to give the appellee Lowy, holder of the Gillespie notes and mortgage, a first lien, and the appellant, Brosseau, a second lien.RICKS, J. (after stating the facts).

Appellant contends that the transfer of the Gillespie notes and trust deed in question by Anton Boenert to appellee Lowy as security was without the knowledge or authority of Auguste Boenert, who seems to have been the owner. On the part of appellee Lowy it is contended that such action on the part of Anton Boenert was with the authority and as the agent of his wife, Auguste, and there is evidence in the record to support such contention. The trial court, in the opinion attached to appellant's brief, and based on the same evidence here presented, also states: ‘The proof also tends to show that Anton Boenert was the agent of his wife, having full power and authority to bind her in all matters.’ The Appellate Court has also accepted such conclusion, and we are satisfied to concur therein. If, then, as stated by the trial court, ‘Anton Boenert was the general agent of his wife, having full power and authority to bind her in all matters,’ the transfer of the notes and trust deed to appellee, as security, by Anton Boenert, though his wife may have been the legal owner of the same, was binding upon her; and we cannot sustain the insistence of appellant that the transfer in question, being for the benefit of Anton Boenert, was therefore not binding upon his wife.

The question next remains to be considered, what effect did the purchase of the land from Ziese by Auguste Boenert, and her subsequent conduct in reference thereto, have upon the Ziese note and trust deed? It is contended by appellee, and was so held by the Appellate Court, that the Ziese $1,500 note, secured by the trust deed to Coombs, which incumbered 80 acres, of which the 20 acres subsequently incumbered by the trust deed now held by appellee Lowy form a part, constituted a part of the consideration for said purchase. The evidence would seem to leave no doubt of the correctness of this contention. Ziese and Boenert both testified that only $1,200 in cash was paid to Ziese for the conveyance to Auguste Boenert. Ziese stated, when asked who was to pay his $1,500 note: ‘Not me. The man that followed me was to pay it. The mortgage stays on the farm until the farm was sold to somebody else.’ He also stated that he was never asked to pay the note, or to pay the interest thereon, after he sold the farm; that he knew nothing about the extensions of time or changes as to the interest, which, with the payments of interest, were indorsed on the note. When asked if he was to pay his note after such sale, he answered: ‘I could not pay the $1,500. I don't own the land. I guess the owner of the land has to pay.’ And in reply to the further inquiry if he paid it, he replied, ‘No.’ Anton Boenert testified that Ziese said to him, ‘If you or your wife, or whoever buys the property, gives me so much for my equity, I will convey the property and go to Dakota,’ and that the consideration in the deed was $8,000, because the land was then considered worth $100 per acre. The cash payment and the...