Campe v. City of Chicago

• Decision Date: 18 January 1892
• Citation: 29 N.E. 892,140 Ill. 361
• Parties: VON CAMPE et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

140 Ill. 361

29 N.E. 892

VON CAMPE et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Jan. 18, 1892.

Appeal from appellate court, first district.

Bill by the city of Chicago against Sarah E. Von Campe, Augusta L. Von Alten, and others, to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Reversed.A. M. Pence and Wilson & Zook, for appellants.

John S. Miller and Geo. A. Du Puy, for appellee.

The other facts fully appear in the following statement by MAGRUDER, C. J.:

This is a bill filed in the circuit court of Cook county on February 11, 1889, by the city of Chicago against Orrington Lunt, Sarah E. Von Campe, H. Von Campe, her husband, Augusta L. Von Alten, Eberhardt Von Alten, her husband, and Frank L. Stevens, to foreclose the five mortgages hereinafter described, upon parts of wharfing lots 24 and 25, in the city of Chicago. All the defendants answered, and, after proofs taken and hearings had, the circuit court rendered a decree of foreclosure in accordance with the prayer of the bill, which decree has been affirmed by the appellate court. From the judgment of the latter court the cause is brought here by appeal. On April 1, 1848, the city of Chicago executed to said Lunt, in consideration of $5,000, secured by said mortgages, a conveyance of the westerly half of said lot 24 and the easterly three-fourths of said lot 25, which was recorded in Cook county on November 4, 1858, and re-recorded on July 9, 1872. Thereupon Lunt executed back to the city five mortgages, dated April 1, 1848, each for the sum of $1,000, upon different parts of said premises. These mortgages were recorded on November 4, 1858. Each mortgage contained, among others, the following recitals and provisions: ‘Whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of $1,000, with interest at the rate of six per cent. per annum, payable quarter-yearly on the first days of May, August, November, and February in every year, until the whole sum, principal and interest, shall be fully paid, being for the amount agreed to be paid by said party of the first part to said party of the second part, for the conveyance to said party of the first part, by said party of the second part, of the premises hereinafter described: Now, therefore, this indenture witnesseth: * * * provided, that if the said party of the first part, his heirs * * * or assigns, shall well and truly pay or cause to be paid to the said party of the second part * * * the aforesaid sum, with interest, at the times * * * aforesaid, * * * then these presents * * * shall be absolutely void; and upon this further condition: that so long as said party of the first part, his heirs * * * or assigns, shall promptly pay the interest to become due on said sum of money on the days it respectively falls due, * * * and shall pay all taxes and assessments legally levied or assessed on the said premises as they become due and payable, said city of Chicago * * * shall forbear and delay the payment of said principal sum, and shall only require the payment of the interest thereon, at the times and in the manner aforesaid; but, if default shall be made in the payment of said interest, or any part thereof, on the day or date it falls due, respectively, and a demand thereof shall be made upon the premises herein described, then the whole of said sum, principal and interest, herein mentioned, shall forth with become due and payable, and from henceforth it shall be lawful for the said party of the second part * * * to enter upon the premises, and the same from thenceforth peaceably to have and enjoy, and the rents, issues, and profits thereof to receive, to its own use, without any bindrance, * * * and to sell and dispose of the same, * * * and out of the money arising from such sale to retain the principal and interest. * * * But until default shall be made * * * it shall be lawful for the said party of the first part, his heirs and assigns, * * * to * * * possess and enjoy the said premises,’ etc. Attached to each mortgage, and after the signatures of the mortgagors thereto, was the following stipulation, signed by the mortgagor and the mayor of the city: ‘It is hereby stipulated between the parties to the foregoing indenture that nothing therein contained shall be so construed as to subject any property of the parties of the first part thereto or their heirs, executors, administrators, devisees, or assigns, except that described in this indenture, to the payment of the indebtedness therein mentioned; nor shall any suit be instituted against him or them for the recovery of said indebtedness, except so far as may be necessary to enforce the lien of the city of Chicago, its successors or assigns, upon the property described in said indenture, to secure the payment of said indebtedness.’ On March 9, 1872, Lunt and wife conveyed the premises to George E. Purrington and Abner Scranton for an express consideration of $45,000, which deed was acknowledged on June 24, 1872, and recorded July 9, 1872, and contained, among others, the following conditions: ‘Subject, however, to five mortgages, all dated April 1, 1848, for the sum of $1,000 each, given by Orrington Lunt to the city of Chicago, bearing interest at six per cent. per annum, payable quarterly; which said mortgages, amounting to five thousand dollars, and the indebtedness thereby secured, the said parties of the second party hereby assume and agree to pay.’ By trust-deed dated and recorded August 10, 1872, Purrington & Scranton conveyed the premises to Hugh A. White, as trustee, to secure an indebtedness of $40,000, represented by four bonds of $10,000 each, payable to the order of Louisa P. Bigelow. By trustee's deed, dated July 9, 1879, and recorded July 28, 1879, executed in pursuance of a sale made under said trust-deed by the said White, trustee, the premises were conveyed to Sarah E. De Haven (now Sarah E. Von Campe) and Joseph E. De Haven. Joseph E. De Haven appears to have made a conveyance to Augusta L. De Haven, (now Augusta L. Von Alten.) It also appears that the indebtedness secured by said trust-deed was owned by said Sarah and Augusta, who were then minors, (or by their guardians for them,) before the said trustee's sale, and that possession of the premises was taken in their behalf by White in the winter of 1878. By decree rendered on March 23, 1887, by the circuit court of Cook county in a partition proceeding therein, the westerly half of lot 24, and the easterly quarter of lot 25, were set off to said Sarah, and the westerly two-thirds of the easterly three-fourths of lot 25 was set off to said Augusta. By deed dated August 8, 1888, and recorded October 9, 1888, Mrs. Von Campe and her husband conveyed her share to said Stephens. She and her sister Augusta married citizens of Germany, and resided abroad. They were not in the United States from 1874 to 1879, but arrived here in 1880. The testimony tends to show that they still reside abroad. After the sale in 1879, they were in possession, through their tenants, and paid all taxes and assessments through White, as their agent, from 1880 to 1887, inclusive. After the partition, each was in possession, and paid taxes on her portion.

MAGRUDER, C. J., ( after stating the facts.)

The mortgages which this bill was filed to foreclose are dated April 1, 1848, and were executed when the limitation law of 1845 was in force. The interest on each of them was paid up to August 1, 1876, but since the latter date no interest has been paid, either by the original mortgagor or any of his grantees. August 1, 1876, is conceded to be the date of the default in the payment of the interest. The main defense made is that this suit is barred by section 11 of the limitation act of April 4, 1872, insomuch as the bill was not filed until nearly 13 years after the cause of action accrued. Section 11 is as follows: ‘No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage unless within ten years after the right of action or right to make such sale accrues.’ Section 24 of the same act provides as follows: ‘But this section shall not be construed so as to affect any rights or liabilities, or any causes of action, that may have accrued before this act shall take effect.’ The words ‘this section,’ as used in section 24, are to be construed as meaning ‘this act.’ Dickson v. Railroad Co., 77 Ill. 331. If these mortgages had been given to secure promissory notes dated April...