Crabtree v. Levings

• Decision Date: 31 January 1870
• Citation: 53 Ill. 526,1870 WL 6251
• Parties: JOHN CRABTREE et al.v.CALVIN W. LEVINGS.
• Court: Illinois Supreme Court

53 Ill. 526

1870 WL 6251 (Ill.)

JOHN CRABTREE et al.

v.CALVIN W. LEVINGS.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Edgar county; the Hon. JAMES STEELE, Judge, presiding.

The opinion states the case.

Mr. JOHN W. BLACKBURN, for the appellants.

Mr. JAMES A. EADS, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This record, as it now comes before us, discloses the following facts: John Crabtree being indebted by a note secured by mortgage, to George Arbuckle, agreed with James Crabtree that the latter should assume the payment of the debt in consideration of the sale to him by John of certain lands in Iowa. James thereupon entered into a written agreement with Arbuckle, bearing date June 9, 1868, mutually executed by the parties, and reciting that Arbuckle was to transfer the mortgage to James Crabtree, and also to convey to him certain land, and Crabtree was to convey to Arbuckle, by deed of warranty, ninety acres of land, described in the contract as then owned by William Dresbach and occupied by him, also a town lot and three acres of land with a house. Crabtree was to give possession of the ninety acres subject to the growing crop, and of the other property by the first of October. Soon after the execution of the agreement, Arbuckle conveyed to Crabtree the land to be conveyed by him, and received from Crabtree a conveyance of the town lot and the three acres, and about the first day of July, as stated in the record, tendered to Arbuckle a deed duly executed by Dresbach to him for the ninety acres, and on the first of October offered him possession. Arbuckle refused to accept the deed or to surrender the note and mortgage to James Crabtree, and subsequently assigned the latter to Levings, one of the appellees herein, who filed a bill against John Crabtree to foreclose. The latter answered, setting up the foregoing facts, and alleging that the note and mortgage had been assigned by Arbuckle to complainant without consideration, and merely for the purposes of this suit. He also filed a cross-bill, making Arbuckle and James Crabtree co-defendants with Levings, again alleging the foregoing facts, tendering a deed from Dresbach, averring the title of the latter to be perfect, and praying that Arbuckle be decreed to execute his agreement made with James Crabtree, and that the note and mortgage be surrendered for cancellation. Levings demurred to the cross-bill, and moved that his own case be set down for hearing on bill and answer. The appellant moved a stay of proceedings until Arbuckle and James Crabtree could be brought into court and the cross-bill answered. The court allowed complainant's motion and overruled that of defendant, and on the hearing decreed a foreclosure and sale, from which decree the defendant appealed. No disposition was made of the demurrer to the cross-bill.

As the case was heard on the original bill and answer, without a replication, the answer was to be taken as true, and we are of opinion that, independently of the question argued by counsel whether the hearing should not have been stayed until the cross-cause could also have been heard, the court erred in decreeing a sale and foreclosure upon the original bill and answer. By the allegations in the answer, the complainant had no equities superior to those of Arbuckle, and on the facts set up in the answer, Arbuckle, as a complainant, would clearly have had no right to this decree. For a valuable consideration John Crabtree had contracted with James that the latter should pay the mortgage, and in pursuance of this arrangement, James in turn had entered into a contract with...