Edgerton v. Young
| Decision Date | 30 April 1867 |
| Citation | 43 Ill. 464,1867 WL 5069 |
| Parties | LYCURGUS EDGERTON et al.v.ARCHIBALD YOUNG et al. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of LaSalle county; the Hon. M. E. HOLLISTER, Judge, presiding.
This was a suit in chancery commenced by Archibald Young, and Elbert H. Van Kleek, the defendants in error, in the Circuit Court of LaSalle county, for the purpose of foreclosing a trust deed, executed by Joshua Cushing and wife to Orville N. Adams, to secure a note for $1,600.
A decree of foreclosure was rendered in the court below, from which a writ of error was prosecuted to this court.
The facts in the case are sufficiently stated in the opinion of the court.
Messrs. WALKER & DEXTER, for the plaintiffs in error.
Messrs. CHARLES BLANCHARD and A. J. GROVER, for the defendants in error.
On the 7th of October, 1855, Joshua Cushing executed to Orville N. Adams, his promissory note for $1,600, payable one year from date, and, to secure its payment, at the same time executed a deed of trust on certain real estate, in which deed Adams was made the trustee with power to sell. On the 19th of May, 1856, Adams, being indebted to Young & Van Kleek, the complainants below, in the sum of $1,828, indorsed in blank the note of Cushing, and delivered it, together with the deed of trust, to the attorneys of Young & Van Kleek, to be held by them as security for the payment of the debt due from Adams to Young & Van Kleek. On the 27th of November, 1856, the note from Cushing to Adams being due and unpaid, the former executed to Adams, at his request, a conveyance in fee simple for the premises described in the deed of trust. It is not claimed that Young & Van Kleek, or their attorneys, had any agency in procuring the execution of this deed, or, at that time, any knowledge of its execution.
Before this time, namely, at the July Term, 1856, of the Circuit Court of the United States, for the Northern District of Illinois, Lycurgus Edgerton, one of the plaintiffs in error, recovered a judgment against Adams on which execution was duly issued, and on the 25th of August, 1857, the premises described in the deed of trust were sold by the marshal, and subsequently conveyed by him to J. M. Walker, as attorney of Edgerton, and afterward conveyed by Walker to Edgerton himself.
The attorneys of Young & Van Kleek, considering the lien of the deed of trust lost by these proceedings, on the 27th of October 1857, procured from Chauncey K. Adams, a brother of Orville N. Adams, a deed conveying to James Strain, one of said attorneys, a quarter section of land situate in Knox county, and, at the same time, Strain gave back to O. N. Adams a contract to reconvey in case Adams should pay Young & Van Kleek the amount due them in eighteen months from that date. The contract provided, that time should be of its essence, and if Adams failed to pay within the time stipulated, the contract to reconvey should be void. Adams did fail to pay, and on the 21st day of May, 1859, Strain, at the request of Young & Van Kleek, and with the consent of Adams, executed to them a deed for the Knox county land. On the 7th of August, 1865, Young & Van Kleek filed their bill in chancery against Edgerton, Adams and Cushing, praying for a sale of the premises described in the deed of trust. Edgerton and Adams, in their answer, insist upon the sale and deed by the marshal as creating a paramount title, and also set up the proceedings in regard to the Knox county land. The Circuit Court pronounced a decree directing the payment to complainants of the amount due upon the note secured by the deed of trust, and, in default of payment, within thirty days, that the premises described in said deed of trust should be sold. Edgerton sued out a writ of error.
It is insisted by the complainant in error, that, inasmuch as no deed from Adams to Young & Van Kleek for the premises described in the deed of trust was ever made and recorded, nor any instrument placed on record showing the assignment by Adams, and since, when Edgerton bought, the record only showed, first, a deed of trust or mortgage by Cushing to Adams, and then an absolute deed from Cushing, Edgerton had the right to buy upon the faith that the entire estate in the premises had vested in Adams.
If a purchaser finds upon record a mortgage, and a subsequent deed from the mortgagee to the mortgagor, it is probable that he would be protected under our registry laws, against the claim of an assignee of the note secured by the mortgage, in the absence of notice of such assignment. Although the assignment of a note secured by mortgage, carries with it the equitable interest in the...
To continue reading
Request your trial
-
The Peoria v. Bryan
......97; Homer v. Zimmerman 45 Ill. 14; Sheldon v. Patterson, 55 Ill. 507; Wilson v. Geisler, 19 Ill. 49; Vansant v. Allmon 213 Ill. 30; Edgerton v. Young, 43 Ill. 464. The laws of Illinois existing at the time of the execution of the deed of trust entered into and became a part ......
-
Thomas v. Thomas
......360]answer to the original bill, his cross-bill will be dismissed either on answer or motion or demurrer. Edgerton v. Young, 43 Ill. 464;Morgan v. Smith, 11 Ill. 194;Wing v. Goodman, 75 Ill. 159;Akin v. Cassiday, 105 Ill. 22;Newberry v. Blatchford, 106 Ill. ......
-
Vickery v. Burton
......They were open. to any defense arising out of the same transaction between. the original parties. Olds v. Cummings, 31 Ill. 188;. Edgerton v. Young, 43 Ill. 464; Kluman v. Frishie, 63 Ill. 482; White v. Sutherland, 64. Ill. 181; Haskell v. Brown, 65 Ill. 29;. International Bank v. ......
-
Coryell v. Klehm
......484]because it would not be for her interest that such merger should take place. Campbell v. Carter, 14 Ill. 286;Edgerton v. Young, 43 Ill. 464;Richardson v. Hockenhull, 85 Ill. 124;Meacham v. Steele, 93 Ill. 135;Lowman v. Lowman, 118 Ill. 582, 9 N. E. 245;Watson v. ......