Bullock v. Battenhousen

• Decision Date: 20 November 1883
• Citation: 108 Ill. 28,1883 WL 10352
• Parties: JOHN M. BULLOCKv.MARTHA E. BATTENHOUSEN.
• Court: Illinois Supreme Court

108 Ill. 28

1883 WL 10352 (Ill.)

JOHN M. BULLOCK

v.MARTHA E. BATTENHOUSEN.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding. On the 11th of June, 1872, Eben F. Runyan made and delivered to John M. Bullock his promissory note for $6000, payable five years after date, with interest thereon at ten per cent per annum, payable semi-annually, and at the same date Runyan and wife executed and delivered to Bullock a deed of trust conveying the east half of section 28, and the east half of the north-east quarter of section 33, town 36 north, range 12 east, third principal meridian, in Cook county, to John R. Bullock, trustee, upon the following trust, that is to say:

“Whereas, said Eben F. Runyan has made his promissory note, bearing date the 11th day of June, 1872, payable to the order of John M. Bullock, five years after date, with interest at the rate of ten per cent per annum, payable semi-annually, * * * in case of default in the payment of the said promissory note and interest, or either or any part thereof, * * * on the application of the legal holder of said note, it shall be lawful for the said party of the second part, his heirs, assigns or successors in trust, to enter into and upon the premises hereby granted, * * * and to sell and dispose of the said premises, * * * and out of the proceeds of such sale, after first paying all costs of advertising and sale, commissions, and all other expenses of this trust, and interest due on said note, according to the tenor and effect thereof, rendering the overplus (if any) unto the said party of the first part, his legal representatives or assigns, on reasonable request. * * * And it is stipulated and agreed that in case of default in the payment of said promissory note or interest, as aforesaid, of a breach in any of the covenants or agreements herein mentioned, the whole of said principal of said promissory note, and the interest to the time of sale, shall, at the option of the legal holder of said note, become due and payable, and the said premises may be sold as if the said indebtedness had matured.” This instrument was filed for record in the proper office on the 21st of June, 1872, and duly recorded on the same day.

Payments appear to have been made on the promissory note by Runyan, as follows: June 11, 1873, $600, as interest; July 1, 1875, $1200, as interest.

The following instrument was duly filed for record in the proper office on the 12th of September, 1874, and recorded on the 22d day of September, 1874, to-wit:

“Know all men by these presents, that John R. Bullock, of the city of Waukegan, in the county of Lake, and State of Illinois, for and in consideration of one dollar, and for other good and valuable considerations, the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release and quitclaim unto Eben F. Runyan, of the city of Chicago, in the county of Cook, and State of Illinois, all the right, title, interest, claim or demand whatsoever I may have acquired in, through or by a certain trust bearing date the 11th day of June, A. D. 1872, and recorded in the recorder's office of Cook county, in the State of Illinois, (in book 86 of “““Records,” page 483,) to the premises therein described as follows, to-wit: The east half of section twenty-eight (28), and the east half of the north-east quarter of section thirty-three (33), in township number thirty-six (36) north, range twelve (12) east of the third principal meridian, in the county of Cook, in the State of Illinois, together with all the appurtenances and privileges thereunto belonging or appertaining.

Witness my hand and seal this 7th day of September, A. D. 1874.

JOHN R. BULLOCK, Trustee. [Seal.]”

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                ¦“STATE OF ILLINOIS, ¦)¦   ¦
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                ¦Cook County.        ¦)¦   ¦
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I, Frederick S. Baird, a notary public in and for the said county, in the State aforesaid, do hereby certify that John R. Bullock, trustee, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth.

Given under my hand and notarial seal this 12th day of September, A. D. 1874.

FREDERICK S. BAIRD,

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                ¦[Notarial seal.]¦Notary Public.  ”¦
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On the 16th of July, 1874, Runyan and wife executed and delivered to Christian Battenhousen a deed for the said east half of section 28, and also for the west half of the northeast quarter of section 33, all in town 36 north, range 12 west, in Cook county. John M. Bullock, on the 30th of August, 1877, filed his bill in chancery in the office of the clerk of the circuit court of Cook county, against Runyan and wife, and Christian Battenhousen, Martha Battenhousen, and others, alleging therein, among other things, that said pretended release was a forgery, the non-payment of the amount due on the promissory note executed to him by Runyan, after deducting certain admitted payments, and that Battenhousen is a purchaser junior to and subordinate to his rights under the deed of trust, and praying that said pretended release of John R. Bullock be set aside, etc.; that said deed of trust be foreclosed, and the premises therein described be sold, etc., for the payment of the amount due on the said promissory note, etc. Christian and Martha Battenhousen answered, denying the forgery of the release of John R. Bullock, alleging they were purchasers for full value, and in good faith believing, as Runyan then assured them, that the premises were free of all incumbrances; that they are Germans, unacquainted with the English language, and relied upon what the records disclosed and Runyan assured them,--that the deed of trust to John R. Bullock, trustee, was released.

Replication was filed, and the cause was heard at the March term, 1880, of the circuit court, on bill, answer, and proofs then introduced, and the court thereupon decreed that the pretended release of John R. Bullock be set aside, and that the premises be sold for the payment of the amount due to John M. Bullock on the said promissory note. The Battenhousens appealed from this decree to the Appellate Court for the First District, and that court, at its October term, 1880, reversed the judgment of the circuit court, and remanded the cause for further proceedings. After the cause was remanded Christian Battenhousen died, and at the October term, 1881, of the circuit court, the death of Christian Battenhousen was suggested, and leave was given to Martha Battenhousen to file an amended and supplemental answer, which she then proceeded to do. In this answer Martha Battenhousen denied, specifically, all the material allegations of the bill, and charged that the trust deed is of no binding force, validity or effect as a lien upon the premises, and against the defendant, and that it does not secure said indebtedness or said note, and that the same is not now, and never has been, a lien upon said premises for any purpose, against said defendant; that in July, 1874, Christian Battenhousen purchased of Runyan the west half of the north-east quarter of section 33, and the east half of section 28, town 36 north, range 12 east, third principal meridian, for $20,000, and that Runyan executed to him a warranty deed therefor, in which he covenanted that the premises were free from incumbrance; that Battenhousen then paid Runyan $4100 of the purchase money, and executed notes, and mortgage upon the premises, securing deferred payments in one, two, three, four, five, six, seven and eight years, with eight per cent interest, payable annually, which mortgage was then recorded; that at the time of the purchase Runyan represented to Battenhousen that the premises were clear of all incumbrances; that Battenhousen had no actual knowledge or notice of the trust deed, and that the record thereof was not constructive notice of the existence of the same for the purposes claimed in the bill, or for any purpose, and that said trust deed is insufficient to create a lien upon said premises, as against defendant; that Battenhousen, after said release was filed for record, relying thereon, paid off a large amount of said indebtedness; that $20,000 was an adequate price for said premises; that Runyan disposed of said notes, before due, to parties who now hold them; that on the 5th of April, 1881, Battenhousen conveyed the premises to defendant. To this there was also replication filed, and the cause was again heard at the March term, 1882, of the circuit court, when a decree was again rendered setting aside the release as a forgery, and foreclosing, etc., the trust deed. An appeal was also prosecuted from this decree to the Appellate Court for the First District, and that court, at its October term, 1882, reversed the decree of the circuit court, and refused to remand the cause, and this appeal is prosecuted to reverse that judgment.

Messrs. SEARLS & COOK, for the appellant:

Whatever is sufficient to put a subsequent purchaser on inquiry is notice to him of what such inquiry would lead to the knowledge of the inquirer. 1 Story's Eq. Jur. (12th ed.) sec. 403; 2 White & Tudor's Leading Cases in Equity, part 1, p. 117; Parkist v. Alexander, 1 Johns. Ch. 394; Bent v. Coleman, 89 Ill. 364; United States Mortgage Co. v. Gross, 93 Id. 483; Watt v. Schofield, 76 Id. 261; Buchanan v. International Bank, 78 Id. 500; Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 Id. 350; Merrick v. Wallace, 19 Id. 486; Morrison v. Kelley, 22 Id. 610.

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