Chicago Trust & Sav. Bank v. Chicago Title & Trust Co.

• Decision Date: 18 April 1901
• Parties: CHICAGO TRUST & SAVINGS BANK v. CHICAGO TITLE & TRUST CO. et al.
• Court: Illinois Supreme Court

190 Ill. 404

60 N.E. 586

CHICAGO TRUST & SAVINGS BANK

v.CHICAGO TITLE & TRUST CO. et al.¹

Supreme Court of Illinois.

April 18, 1901.

Appeal from appellate court, First district.

Suit by the Chicago Trust & Savings Bank against the Chicago Title & Trust Company and others. From a judgment of the appellate court (92 Ill. App. 366) affirming a judgment for defendants, complainant appeals. Affirmed.

The facts in this case are thus stated by the appellate court: To the amended bill of complaint filed in this case by appellant, demurrers by the several appellees were sustained, and said amended bill was dismissed for want of equity. Chronologically stated, the facts as alleged in said amended bill are substantially as follows: ‘The 16th day of October, 1891, Henry N. Cooper, one of the defendants, executed and delivered to codefendant Minna Allmendinger three certain agreements in writing, which are identical in form. One of them reads as follows, viz.: ‘$7,500. Chicago, Ill., October 16, 1891. On or before one year after the date of the completion of the piling and filling of the premises described in a certain trust deed of even date herewith, which trust deed is executed by the undersigned payor to E. Huntington Pratt, trustee; said completion of piling and filling to be according to the requirements of a certain agreement of even date herewith made by Minna Allmendinger, the payee herein, with Samuel E. Bradt, E. C. Lott, George M. Graves, and Henry N. Cooper; the date of said completion of piling and filling to be determined by the board of commissioners of Lincoln Park, and evidenced by their certificate in writing to be filed with E. Huntington Pratt, trustee, and notice in writing served on the payor herein,-for value received I promise to pay to the order of Minna Allmendinger the sum of seventy-five hundred dollars ($7,500) at the First National Bank in Chicago, with interest thereon at the rate of six per centum per annum, payable annually from and after the date of the completion of the piling and filling of the premises described in the trust deed given to secure this note, which date is to be determined as hereinbefore provided for. This note is secured by a trust deed to E. Huntington Pratt, trustee, of even date herewith, on real estate in the city of Chicago, Cook county, Illinois. Henry N. Cooper.’ Indorsed as follows: ‘Without recourse. Minna Allmendinger.’ The same day the said Minna Allmendinger executed and delivered to Cooper a certain contract, setting out when and how the ‘piling and filling’ referred to was to be performed. That contract is not attached to the bill of complaint, but is referred to in the above agreement, and in the trust deed mentioned below, and in appellant's amended bill. The same day Cooper and others executed and delivered to Minna Allmendinger a trust deed upon lots described in the bill, to secure the money agreed to be paid by the agreements, a copy of one of which is given above. The recital as to indebtedness contained in said trust deed is as follows: ‘The said Henry N. Cooper, the grantor herein, is justly indebted unto the legal holder of the principal promissory note, hereinafter described, in the principal sum of twenty-two thousand and five hundred ($22,500) dollars, being part of the purchase money for the premises hereby conveyed, secured to be paid by three certain principal promissory notes of the said Henry N. Cooper, bearing even date herewith, made to the order of Minna Allmendinger, with interest at the rate of _____ per cent. per annum, payable semiannually; both principal and interest being payable at the First National Bank of Chicago, Illinois. Said notes which will be due are for the principal sum of seventy-five hundred ($7,500) dollars each, and will be payable, respectively, on or before one (1), two (2), and three (3) years after the date of the completion of the piling and filling of the above-described property by the said Minna Allmendinger according to the requirements of an agreement of even date herewith made by said Minna Allmendinger with Samuel E. Bradt, E. C. Lott, George M. Graves, and Henry N. Cooper; the date of said completion of piling and filling to be determined by the commissioners of Lincoln Park, and evidenced by their certificate in writing, to be filed with the trustee herein, and notice in writing served on the grantor herein, with interest at six per centum per annum, payable annually.’ January 20, 1892, Cooper conveyed the premises described in the trust deed, by warranty deed, to the Chicago Title & Trust Company, in trust for certain purposes, subject to the trust deed above named. After January 20, 1892, and prior to July 25, 1893, Minna Allmendinger surrendered said agreements and trust deed to the said Cooper, with an indorsement on the back of the agreements: ‘Without recourse. Minna Allmendinger.’ The Allmendinger contract given to Cooper, providing for the ‘piling and filling,’ is not set out. July 25, 1893, Cooper, being indebted to appellant in a sum of $15,000, delivered to it two of the contracts or agreements, for $7,500 each, together with the trust deed. The bill states that ‘Cooper never paid said notes, but acquired them back from said Minna Allmendinger by purchasing the same, as above alleged.’ January 25, 1894, the lands were subdivided into Lake Shore Drive addition to Chicago. February 14, 1894, E. Huntington Pratt released the trust deed given by Cooper. Minna Allmendinger also signed the release deed as the legal holder of the Cooper contracts. February 15, 1894, the Chicago Title & Trust Company executed and delivered to the Northern Trust Company, trustee, four trust deeds to secure four notes aggregating $102,500, and the unknown holders of these notes are also made defendants. The bill prays that the release deed to the Chicago Title & Trust Company by Pratt may be set aside, vacated, and declared null and viod; that the Cooper-Allmendinger trust deed be decreed to be a valid and first lien; and that the four trust deeds from the Chicago Title & Trust Company to the Northern Trust Company be declared subject and subordinate to lien of appellant.'Johnson & Morrill (Robert W. Millar, of counsel), for appellant.

John G. Henderson (Frank G. Gardner and Lackner, Butz & Miller, of counsel), for appellees.

PER CURIAM.

In deciding this case the appellate court delivered the following opinion:

‘Counsel for appellant contended, and argue with great force, that the agreements (which we shall for certainty refer to as ‘note contracts') held by appellant, having been purchased and not paid by Mr. Cooper, who signed them, he had a right to reissue them, and that the reissue thereof is valid. Whether that be so depends...