Dayton v. the Citizens Nat'l Bank
| Citation | 11 Ill.App. 501,11 Bradw. 501 |
| Parties | MARY E. DAYTON, Adm'x,v.THE CITIZENS NATIONAL BANK, impl'd, etc. |
| Decision Date | 31 May 1882 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Coles county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed October 28, 1882.
Messrs. BROWN, KIRBY & RUSSELL, for appellant; that whatever puts a party upon inquiry amounts to notice, cited 4 Kent's Com. 179; Doyle v. Teas, 4 Scam. 202; Rupert v. Mark, 15 Ill. 542; Morrison v. Kelly, 22 Ill. 610; Merrick v. Wallace, 19 Ill. 486; Ogden v. Haven, 24 Ill. 59; C. R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350; Harper v. Ely, 56 Ill. 179; Babcock v. Lisk, 57 Ill. 327; Russel v. Ransom, 76 Ill. 168; Watt v. Schofield, 76 Ill. 261; Erickson v. Rafferty, 79 Ill. 210; Bent v. Coleman, 89 Ill. 364; Brown v. Galloway, 98 Ill. 41; Magruder v. Peter, 11 Gill & J. 217; Ringgold v. Bryan, 3 Mad. Ch. 488; Cook v. De la Garza, 18 Tex. 431; Conover v. Blumrich, 14 Mich. 108; Kennedy v. Green, 3 My. & K. 699; Wilcox v. Hill, 11 Mich. 256; Jones v. Bainford, 21 Iowa, 217.
Mr. JAMES A. CONNOLLY, and Messrs. DUNN & CONNOLLY, for appellee; that a purchaser and a judgment creditor having a lien stand upon the same equity, cited Martin v. Dryden, 1 Gilm. 216; Massey v. Westcott, 40 Ill. 160; Milmine v. Burnham, 76 Ill. 362.
Where there are two descriptions in a deed, one subordinate which is incorrect, the latter will be treated as surplusage: Kruse v. Wilson, 79 Ill. 233; Myers v. Ladd, 26 Ill. 415; C. & A. R. R. Co. v. Morgan, 69 Ill. 492; Job v. Tebbetts, 4 Gilm. 153; Rodgers v. Kavanaugh, 24 Ill. 587.
If a description can be made certain by rejecting that which is repugnant, it will be done: Swift v. Lee, 65 Ill. 336; Sharp v. Thompson, 100 Ill. 447; Everett v. Boardman, 58 Ill. 429; Miller v. Beeler, 25 Ill. 163; Sickmon v. Wood, 69 Ill. 330; Kruse v. Scripps, 16 Ill. 103.
Courses and distances in a deed can be controlled only by monuments: 2 Washburn on Real Property, 674; Chadbourne v. Mason, 48 Me. 391; Bolton v. Lann, 16 Tex. 96; Ferris v. Coover, 10 Cal. 629; Beahan v. Stapleton, 13 Gray, 427.
Where the provisions of a grant are special and express, they can not be restrained by a distinct clause in the deed: 2 Washburn on Real Property, 671; Smith v. Strong, 14 Pick. 128; Whiting v. Dewey, 15 Pick. 428; Winn v. Cabot, 18 Pick. 533; Cutler v. Tufts, 3 Pick. 272; Dana v. Middlesex Bank, 10 Met. 250; Howell v. Saule, 5 Mason, 410; Morell v. Fisher, 4 Exch. 591; Griffiths v. Penson, 25 Law Rep. 552; Worthington v. Hylyer, 4 Mass. 196.
On the 27th of August, 1868, Joseph Dayton executed a note to his mother, Mary E. Dayton, for the sum of $3,500, borrowed money, payable one year after date, with interest at the rate of ten per cent. per annum, and to secure the same, on the same date executed and delivered to her a mortgage deed in the usual form, intending to convey to her the following described piece of land, to wit: “A part of lot No. twenty-five, in block three in the original town of Charlestown, commencing thirty-eight and one fourth feet west of the southeast corner of said lot, thence running west eighteen and one fourth feet, thence north to the alley; then east eighteen and one fourth feet, thence south to the place of beginning.” But by a mutual mistake of all the parties, the piece of land intended to be mortgaged was erroneously described as commencing thirty-eight and one fourth feet west of the southwest corner of said lot.
The mortgage as executed was duly acknowledged, and on the day after its execution was recorded in the recorder's office of Coles county, Illinois.
The piece of land intended to be mortgaged was purchased by Joseph Dayton on February 1, 1864, from James M. Miller and conveyed to him by a proper description by deed recorded in said recorder's office May 24, 1865.
Immediately after the purchase, Dayton took possession of the land and built thereon a two story brick building, which he occupied as his place of business from that time until in the year 1876, and since that time has been in the uninterrupted possession thereof, by his tenants.
On the 5th day of January, 1876, The Citizens National Bank of Indianapolis obtained a judgment in the United States Circuit Court, for the Southern District of Illinois, against the said Joseph Dayton, for the sum of $2,213.30, on which executions have been issued, returned nulla bona, and the judgment remains wholly unpaid.
The note with the accrued interest not having been paid, appellant commenced this suit in chancery, to obtain a correction and reformation of the mortgage, so that it shall conform to and express the true intent and meaning of the parties thereto, and also for a foreclosure of the mortgage.
The bank alone defends the suit, and in its answer to the bill of complaint, denies all knowledge of the mistake, and all knowledge or notice that the mortgage was intended to convey any property other than that described therein, and sets up that the note secured by the mortgage has been fully paid, and the mortgage thereby satisfied and discharged.
On the hearing, the court below found that a mistake had been made in the description of the land intended to be mortgaged as indicated above, found the amount due appellant on the note and mortgage, and decreed that as against all the defendants to the bill except the said Citizens National Bank, the said mortgage be reformed and corrected so as to express the true intent of the parties thereto, and so that the same shall be and operate as a mortgage upon the property intended to be described, and that on default of payment of the sum found due, the property intended to be described in the mortgage be sold, and the proceeds of sale after payment of costs, be applied to the payment of the sum found due a...
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