Comstock v. Hitt

• Decision Date: 30 April 1865
• Citation: 1865 WL 2854,37 Ill. 542
• Parties: JOHN COMSTOCKv.WILLIS M. HITT.
• Court: Illinois Supreme Court

37 Ill. 542

1865 WL 2854 (Ill.)

JOHN COMSTOCK

v.WILLIS M. HITT.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the circuit court of La Salle county. Hon. MADISON E. HOLLISTER, J.

This was a suit in chancery by Willis M. Hitt, as assignee of certain promissory notes given by Mrs. Ann C. Wilson, as part of the purchase money of land, to compel the payment of those notes by Comstock, to whom Mrs. Wilson had conveyed the land. The facts appear fully in the opinion of the court.

H. M. WEAD for plaintiff in error.

BULL & NASH for defendant in error, cited Townsend v. Ward, 27 Conn., 614; Thompson v. Thompson, 4 Ohio State Rep., 333; Tweddell v. Tweddell, 2 Brown Ch., 154; Halsey v. Read, 9 Paige, Ch. R., 452; Curtis v. Tyler, 9 Ib., 432; Marsh v. Pike, 10 Ib., 595; Bank of Auburn v. Throop, 18 Johns., 505; Starkie v. Mill, Stiles' Rep., 296; Lee v. Rook, Mosely R., 318; Schermerhorn v. Vanderhayden, 1 Johns., 139; Warner v. Beardsley, 8 Wend., 199; Ranbaugh v. Hayes, 1 Vern. R., 130.

E. S. HOLBROOK for plaintiff in error, cited Tichenor v. Dodd, 3 Green Ch., 454; Winkleman v. Kiser, 27 Ill., 21; Belmont v. Cowen, 22 N. Y., 438; 1 Gray, 317, 324. Mr. JUSTICE BREESE delivered the opinion of the court:

The facts of this case, as shown by the record, are briefly these: Heman Baldwin being the owner of certain lots of ground in the city of LaSalle, on the 13th of July, 1857, executed and delivered to Mrs. Ann C. Wilson a bond for a deed of the same, on certain money considerations thereafter to be paid, for which he received the notes of Mrs. Wilson. The first note was duly paid, and two hundred dollars paid on the third note. On the 15th of March, 1860, Wilson being in default, Baldwin conveyed the lots to Messrs. Dean & Blanchard, and assigned the over-due notes of Wilson to them. Dean & Blanchard, on the 2d of December, 1861, conveyed the premises to the defendant in error, by quit claim deed for the consideration of sixty dollars, and at the same time delivered the second and third notes of Wilson to him.

Previous thereto, Mrs. Wilson and her husband, James H. Wilson, on or about the 18th of December, 1858, for a valuable consideration, by warranty deed duly executed and acknowledged, conveyed the premises to the plaintiff in error, and delivered him the title bond of Baldwin and the first note which they had paid. This deed recites that “it was and is subject by the terms thereof to the said bond.” The language of the deed is, “subject, nevertheless, to the bond of Heman Baldwin to Ann C. Wilson, the grantor above named.”

The bill is filed to compel plaintiff in error to pay these outstanding notes of Mrs. Wilson, and it is elaborately and ably argued by the defendant's counsel, that this obligation rests upon the plaintiff in error, and so the Circuit Court decreed. This is the only important question presented by the record.

There is no sufficient proof that the plaintiff in error ever covenanted or agreed to pay these notes when he took the deed from Wilson and wife. The only pretense for such claim, seems to arise from the language used in the deed from Wilson and wife to the plaintiff in error, “subject, nevertheless, to the bond of Heman Baldwin to Ann C. Wilson, the grantor above named.”

The defendant in error has cited many cases supposed to be authority on this point, which we have examined.

The first case of Townsend v. Ward et al., 27 Conn., 610, was a case of exchange of lands, one parcel being incumbered by a mortgage of twelve thousand dollars. In the deed for the land thus incumbered, is this clause, “which said mortgage, the said K. hereby assumes and agrees to pay, as part of the consideration money named herein.” K., the purchaser, went into possession and exercised acts of ownership over the land from April to November, without any suggestion of any objection on his part to the terms of the deed. In November, he returned the deed to the grantor, stating that he refused to accept it, and should not perform the contract on his part. The court held him to a compliance, on a bill filed for that purpose, deciding that the retention of the deed so long a time was an acceptance of it. And the court also said where land is conveyed subject to a mortgage, the amount of which is allowed to the purchaser by a reduction from...