Doolittle v. Cook

• Decision Date: 30 September 1874
• Citation: 75 Ill. 354,1874 WL 9252
• Parties: MARY J. DOOLITTLEv.ROGER COOK et al.
• Court: Illinois Supreme Court

75 Ill. 354

1874 WL 9252 (Ill.)

MARY J. DOOLITTLE

v.ROGER COOK et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

This was a bill in chancery, filed by Mary J. Doolittle against Henry I. Chase, Henry T. Woodward, Roger Cook and others, to foreclose a mortgage given by Chase to her on land previously sold by Chase to Rogers. The opinion of the court states the material facts.

Messrs. WOOD & LOOMIS, for the plaintiff in error.

Mr. CHAUNCEY NYE, for defendant in error Cook.

Messrs. MCCULLOCH, STEVENS & WILSON, for defendant in error Woodward.

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

It appears that Henry I. Chase, prior to and on the 1st day of January, 1864, owned the N. W. qr., sec. 29, T. 11 N., R. 6 E., fourth principal meridian. On that day he sold it to Roger Cook, for $3,000, of which $100 was paid in hand, and notes given for annual payments of different sums, running from one to ten years, with ten per cent interest. Chase gave to Cook a bond for a conveyance, on his complying with the terms of the purchase. Cook had occupied the premises for several years prior to his purchase, as a renter, and after the purchase, continued to occupy it by residing with his family on the same. He made payments as the notes matured, and the interest on the notes not due, until the entire purchase money was paid. He received a deed of conveyance upon paying the purchase money due up to the 1st of January, 1870. The deed bore date the 9th of February in that year, and a mortgage was given back to secure the unpaid purchase money, in accordance with the terms of the bond.

On the 5th day of August, 1868, Chase gave to complainant a promissory note for $4,000, with ten per cent interest, and two other persons signed the note with him. He also, at the same time, to secure the payment of the money named in the note, executed to her a mortgage on the quarter of land which he had previously sold to Cook, and for which the latter held a bond for a conveyance, and on two ten-acre lots in the vicinity of the city of Peoria. This mortgage was recorded on the tenth day of the same month.

Afterwards, on the 6th day of September, 1869, Chase and others executed and delivered to David McCulloch a deed of trust to secure the payment of a promissory note of that date, given to defendant Woodward, for $13,000, due three years after date, with ten per cent interest. The deed conveyed to McCulloch the two lots previously mortgaged to complainant, together with other lots and lands. The deed contained a power to sell and convey, on default in payment. The money having fallen due and not been paid, the trustee sold, under the power in the deed, when defendant Woodward became the purchaser of the two ten-acre lots named in complainant's mortgage, for the sum of $2,700, and received a conveyance for the same.

On the 7th day of October, 1873, complainant filed her bill to foreclose her mortgage on the quarter of land and the two ten-acre lots, and made Chase, Susan G. Chase, Edwin D. Chase, Cook, Woodward and others, defendants. By the answers filed, and the proofs in the case, the foregoing facts were established. Cook also filed a cross-bill to have the mortgage set aside as to his land, as being void and a cloud thereon.

On a hearing in the court below, a decree was rendered, finding the amount due on the mortgage, ordering the payment of the money by a specified day, and in default thereof, that the two ten-acre lots be sold to satisfy the same. The decree further found, that the mortgage was void as to Cook's quarter, and was a cloud on his title, and ordered it to be canceled, so far as it related thereto. From that decree, complainant prosecutes this writ of error, and asks a reversal of that part of the decree which releases Cook's land from her mortgage. And Woodward assigns cross-errors, and questions the decree, because Cook's land was not required to be first sold.

The important question presented on this record is, as to what interest plaintiff in error acquired in the land purchased by Cook, or in the purchase money he was to pay for the same. Being in the actual occupancy of the premises, according to the numerous and uniform decisions of this court, he was as fully protected in his purchase as if his bond had been recorded before, and not after, the mortgage. He occupied the same relation to the land and to the parties as if plaintiff in error had been actually notified of the entire facts of the transaction. Then, as between plaintiff in error and Chase, her mortgage became valid and binding on his interest in the premises. But she only acquired a lien on his rights.

But to determine how the rights of Cook became affected we must look to the requirements of the statute as to recording such instruments. The 23d section of the conveyance act of 1845, then, and still in force, only provides for the registration of deeds, mortgages, and other instruments in writing, relating to or affecting lands, and gives them force and effect only from and after they are filed for record, as against all creditors and subsequent purchasers without notice; such instruments are declared to be void as to such creditors and subsequent purchasers without notice, until filed for record. Does Cook fall within the provisions of this statute? He is neither a creditor nor subsequent purchaser to pla...