Drury v. Holden

• Decision Date: 12 May 1887
• Parties: DRURY v. HOLDEN.
• Court: Illinois Supreme Court

121 Ill. 130

13 N.E. 547

DRURY

v.HOLDEN.

Supreme Court of Illinois.

May 12, 1887.

Appeal from superior court, Cook county.

J. M. H. Burgett, for William Drury, appellant and defendant.

Fay & Griggs, for appellee.

SHELDON, J.

This is an appeal by Drury, defendant in the court below, from a decree setting aside a sale and deed to him of certain premises in Charles N. Holden's subdivision in Chicago known in the record as the ‘Barn Lot,’ made under the power in a trust deed given by appellee Holden to secure the payment of his note for $6,500 to one Kelly. The record shows that on April 23, 1869, Holden executed to Sanford B. Perry, as trustee, a deed of trust on lots 1, 2, 3, 4, 5, and 6, in C. C. P. Holden's resubdivision, etc., to secure an indebtedness owning from him to the Jonathan Burr estate for the sum of $19,600. September 20, 1871, he executed to said Perry, as trustee, another trust deed upon the same premises, except lot 6, to secure the payment of his note to Edward A. Kelly for the sum of $6,500. By an agreement between the parties, Perry released from the last-mentioned trust deed said lot 1, and at the same time, January 31, 1873, in the place of the security so released, Holden executed to Perry a trust deed on the ‘Barn Lot,’ so called, to secure the same note of September 20, 1871, for $6,500. November 16, 1874, Holden conveyed said lots 2, 3, 4, and 5 to William H. Holden, who conveyed to Warren, he to Elliot, and the latter to Isaac M. Daggett, who on April 12, 1876, conveyed the same to Drury, the appellant. This deed to Drury purported, for and in consideration of the sum of $40,000 in hand paid by the said party of the second part, (Drury,) to grant, bargain, sell, and convey unto Drury said lots 2, 3, 4, and 5. Immediately after the description of the lots conveyed the deed contained the following clause: ‘Subject to the following incumbrances on said described premises, one for the principal sum of nineteen thousand six hundred dollars, and the other for the principal sum of six thousand five hundred dollars.’ The first of said incumbrances is dated April 23, 1869, and the second, the one for $6,500, is dated September 21, 1871. Following thereafter, the deed contained full covenants of warranty of title, and that the premises conveyed were free and clear from all incumbrances; there being no exceptions whatever to the covenants.

Daggett, the grantor, testified that he made the deed, with deeds of three other pieces of property, in exchange for propertyowned by Drury; that in the exchange said lots 2, 3, 4, and 5 were estimated as worth $40,000; that the equity of redemption was traded for, and its value was computed as being the difference between $40,000 and the amount of the incumbrances; to make the amount of consideration named in the deed, the amount of incumbrances were included with the value of the equity; that Drury knew the property was incumbered; as the deed shows, he took it from him subject to incumbrances; that he (Daggett) bought this property subject to incumbrances, but did not assume any, and he put it off on Drury just as he got it; that there was no agreement by Drury to pay the incumbrances, nothing said about his paying them; that he took it subject to incumbrances; that the incumbrance formed part of that $40,000; that he simply agreed to take this property mentioned in the deed on the basis of $40,000 in making up the trade.

It was admitted that in April, 1879, one Eoff purchased the $6,500 note with money furnished him by Drury therefor. September 23, 1879, Perry, the trustee, after advertising the ‘Barn Lot’ for sale under the trust deed of January 21, 1873, made a sale of the same to Drury for the sum of $1,000. The net amount from the sale, $945, was indorsed on the note, and Perry, as such trustee, made a deed of the lot to Drury, pursuant to the sale. The court below found that the premises at the time of the sale were freed and discharged of all indebtedness secured by the trust deed, that the sale and trustee's deed were void, and by its decree set them aside.

It is insisted by appellant that the effect of the decree in this case is to decide that where two tracts of land are mortgaged by separate mortgages to secure the same debt, and one tract is afterwards conveyed away by the mortgagor, a remote grantee of the equity of redemption of the tract so conveyed away is bound to pay the entire mortgage debt, to the relief of the other tract, even though his grantor was under no obligation to pay such debt, and he has entered into no engagement to pay it; that the decree is in direct violation...