Burroughs v. Kotz
| Decision Date | 03 April 1907 |
| Citation | 226 Ill. 40,80 N.E. 728 |
| Parties | BURROUGHS v. KOTZ. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Du Page County; L. C. Ruth, Judge.
Bill by Charles Kotz against N. T. Burroughs. From a decree in favor of complainant, defendant appeals. Dismissed.Adler & Lederer, for appellant.
Kerr & Kerr, for appellee.
On March 23, 1904, appellee filed his bill in the circuit court of Du Page county against appellant and others, asking for specific performance of a contract and a perpetual injunction as to disposing of a certain master's certificate, together with other relief. The bill was afterwards amended, asking that a certain master's certificate held by appellant, as affected by the transactions of March 21, 1904, hereafter described, might be decreed to be a mortgage; that an account be taken; that the appellee be permitted to pay the amount due, and thereby redeem the land; that appellant's conduct might be declared such as to raise a constructive trust in favor of appellee; and that appellee be allowed to have the same carried out in his favor by redeeming the premises and reimbursing Burroughs the amount paid out. The pleadings and entire record indicate that the case was tried upon the theory of the relief asked by the amended bill rather than that set up in the original bill. After a hearing, the chancellor found in favor of the appellee, and decreed, among other things, that said appellee, Kotz, might redeem by paying to Burroughs the amount found to be due (afterwards fixed by stipulation at $16,127.91) within the time limited, and that thereupon said Burroughs (or, upon his failure, the master in chancery) should give a deed to appellee for the premises involved, and the cause was then appealed here.
It appears that appellee had been the owner in fee of a tract of land lying in Du Page county on the line of the Aurora, Wheaton & Chicago Electric road. A decree of foreclosure of a mortgage thereon had been entered December 20, 1902, and the premises had been sold by the master, under said decree, to Charles P. Wurts for $13,064.88. No question is made as to the legality of these foreclosure proceedings. Some time thereafter appellee, then the owner of the equity of redemption, entered into negotiations with one W. W. Hazzard, of Cleveland, Ohio, concerning the formation of a company to establish and conduct a cemeteryon the land. September 11, 1903, Hazzard made a written proposal to Kotz, which was accepted by the latter in writing, wherein Hazzard stated that he would give Kotz for said tract of land, stock and bonds in the company, as well as $15,000 in money, which money was to be used in getting possession of the master's certificate in order to cancel it when the formation of the cemetery company was completed. A supplemental agreement was entered into the same date, more in detail, containing a provision that ‘in the event of failure to incorporate said company, or the abandonment of the project for any reason whatever, the above-mentioned incumbrance of $15,000 shall be considered as an ordinary mortgage loan’ to appellee. The year allowed by the statute to Kotz to redeem passed by without anything definite being done, and the three months allowed for judgment creditors to redeem was drawing to an end. About this time Hazzard brought the matter to the attention of appellant, who was a business man and banker of some means residing in Iowa. In order to be in a position to cause the premises to be redeemed, Kotz gave to C. Y. Boardman, a real estate man and a friend of both himself and Hazzard, a judgment note for $910, which was put in judgment in the Du Page circuit court March 21, 1904. At the same time the note was given Boardman he gave Kotz a written memorandum to the effect that the redemption proposed to be made under said note, and any title thereby acquired, should be for the benefit of said Kotz, subject to the repayment of the incumbrance of $15,000, more or less; also subject to, and for the purpose of carrying out, the agreement between Kotz and Hazzard as it might be modified by consent of the parties. On Monday, March 21, 1904, appellant, appellee, Hazzard, Boardman, and several attorneys for the various parties, met in the office of Mr. Wurts, in Chicago, the owner of the master's certificate. It was represented to Wurts that, in case he did not assign the certificate, Boardman would proceed to Wheaton, the county seat of Du Page county, and redeem as a judgment creditor, and Wurts thereupon, with some reluctance, received a check from Burroughs for the amount due and indorsed and delivered the master's certificate to Burroughs. There is considerable variance in the testimony as to just what the agreement was between Burroughs and Kotz concerning the terms upon which the former took the master's certificate, with reference to any trust on the part of Burroughs or any beneficiary interest on the part of Kotz in the certificate. There is also considerable variance and difficulty in ascertaining, from the testimony of the various witnesses, as to how much of the different transactions between Kotz, Hazzard, and Boardman was known and ratified by Burroughs prior to obtaining the certificate. It appears that, after obtaining the assignment of the master's certificate, Burroughs agreed with Kotz that the latter might redeem the premises by paying the amount due...
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Becker v. Fink
...deed is a mere incident to the payment of the prior lien, and has no bearing on the real controversy between the parties. Burroughs v. Kotz, 226 Ill. 40, 80 N. E. 728. Manifestly on the facts in this case the question of title is only incidental to the chief question as to the priority of l......
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Macdonald v. Dexter
...held that in a proceeding to foreclose a mortgage on real estate a freehold is not involved. Pinneo v. Knox, 100 Ill. 471;Burroughs v. Kotz, 226 Ill. 40, 80 N. E. 728;Lynch v. Jackson, 123 Ill. 360, 14 N. E. 697. We have also held that a bill seeking to have a deed absolute on its face decl......
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...United Electric Coal Co. v. Keefer Coal Co., 338 Ill. 288, 170 N. E. 193;Lederer v. Rosenston, 329 Ill. 89, 160 N. E. 154;Burroughs v. Kotz, 226 Ill. 40, 80 N. E. 728. It will be observed that this familiar rule consists of two independent and separable parts. Of these the latter is, that a......
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Kurzawski v. Malaga
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