Cushman v. Sutphen

• Decision Date: 30 April 1866
• Citation: 1866 WL 4674,42 Ill. 255
• Parties: WILLIAM H. W. CUSHMANv.CHARLES H. SUTPHEN.
• Court: Illinois Supreme Court

42 Ill. 255

1866 WL 4674 (Ill.)

WILLIAM H. W. CUSHMAN

v.CHARLES H. SUTPHEN.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of La Salle county; the Hon. MADISON E. HOLLISTER, Judge, presiding.

This was a suit in chancery instituted in the court below by Charles H. Sutphen against William H. W. Cushman, by which the complainant seeks to redeem from an alleged mortgage, executed by him to the defendant in the form of a deed, purporting to convey an absolute estate.

On the first hearing in the court below, the conveyance was decreed to be a mortgage, and the complainant was allowed to redeem upon paying to the defendant a certain sum. The complainant appealed from that decree, alleging the amount found to be due to the defendant was too large. The defendant assigned cross-errors, insisting the transaction was not a mortgage, but a conditional sale. The cause was heard in this court, on that appeal, at the April Term, 1864, when it was held that the transaction was a mortgage, but the decree was reversed and the cause remanded, with directions to the Circuit Court to refer the cause to the master, in order that further proof might be taken concerning the state of accounts between the parties. The case is reported in 35 Ill. 186, where all the material facts, as presented on the former hearing, may be found.

In obedience to the remanding order of this court, the cause was referred to the master in the court below, and additional proofs taken. The only additional testimony in reference to the character of the transaction, as a mortgage or a sale, was that of the parties themselves, which was conflicting, and is not of sufficient importance, as affecting that question, to be given in detail here.

The master, in stating the account, allowed interest upon some of the items due the defendant at the rate of six per cent, when an usurious rate had been agreed upon. Exceptions were taken to the master's report by the defendant, but they were overruled by the court, and it was again decreed that the conveyance from the complainant to the defendant, though absolute in form, was, in substance and fact, a mortgage to secure a past and prospective indebtedness from the complainant to the defendant. It was further decreed, that the defendant held the title to the land as security for $1,887.84, which complainant was required to pay on or before the 10th of September, 1865, with six per cent interest from the tenth day of the preceding July; and, upon such payment being made, the defendant was required to convey the premises to complainant.

From this decree the defendant took this appeal, and now again insists the court erred in decreeing the conveyance to be a mortgage; but, if it is to be regarded in that light, the account is erroneously stated in allowing but six per cent interest, instead of ten per cent. Mr. GEORGE C. CAMPBELL, for the appellant.

Messrs. LELAND & BLANCHARD and Mr. OLIVER C. GRAY, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

After a careful review of the whole case, and after carefully considering the grounds of our former decision, when the case was previously before this court, we still adhere to the decision then made. We still hold that the deed from appellee to appellant, of the 19th day of February, 1856, must be regarded as a mortgage, or security for a pre-existing indebtedness, as well as for money then advanced, and for contemplated future advances. The last trial in the court below has disclosed no evidence which in our judgment should change the conclusion then announced. The only additional evidence on that question is the testimony of the parties themselves, and it is contradictory; one swearing it was intended only as a security, and the other, that it was an absolute conveyance. In this conflict we can only look to the corroborating evidence in the case to settle the repugnance; and we think it sustains the version given of the transaction by appellee. Holding the deed to be but a security, the court below decided correctly in referring the case to a master to state the accounts.

When the former decree was reversed, and the cause was remanded, with leave to examine the parties as to the state of their accounts, it was supposed the case would be greatly relieved from the uncertainties and inexplicable confusion that then embarrassed a statement of their accounts. But, when it comes before us on exceptions to the master's report, we discover, that the case is not by any means relieved of its former difficulties. The parties differ widely...