Fortier v. Jacob Darst.

• Decision Date: 30 April 1863
• Citation: 1863 WL 3095,31 Ill. 212
• Parties: BARTHOLOMEW FORTIERv.JACOB DARST.
• Court: Illinois Supreme Court

31 Ill. 212

1863 WL 3095 (Ill.)

BARTHOLOMEW FORTIER

v.JACOB DARST.

Supreme Court of Illinois.

April Term, 1863.

WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. S. L. RICHMOND, Judge, presiding.

Jacob Darst exhibited his bill in chancery in the court below, against Bartholomew Fortier, James McFadden, and another.

From the statements in the bill, and the evidence adduced on the hearing, it appears that on the 17th of April, 1849, McFadden, being indebted to Fortier in the sum of four thousand dollars, executed his four promissory notes for one thousand dollars each; and on the same day, to secure those notes, McFadden executed and delivered to Fortier a mortgage upon certain real estate, situate in the city of Peoria.

The notes having become due, and remaining unpaid, Fortier placed the same, together with the mortgage, in the hands of Manning & Merriman, attorneys in Peoria, for collection; they giving to Fortier a receipt therefor, which was as follows:

“Rec'd of Bartholomew Fortier four promissory notes of one thousand dollars each, all bearing date April 17, 1849, one payable Nov. 1, 1850; one payable Nov. 1, 1851; one payable Nov. 1, 1852, and the other payable Nov. 1, 1853; all signed by James McFadden, and payable to said Fortier. Also received the mortgage by which said notes are secured, on French claims in the village of Peoria, numbered one, eleven, forty-one and forty-two; all said notes drawing six per cent. interest from date; and on which five hundred and ten dollars have been paid; which are received for collection, and to be accounted for accordingly.”

“MANNING & MERRIMAN.

Peoria, Illinois, July 5, 1854.”

Manning & Merriman, as attorneys for Fortier, instituted proceedings in the Circuit Court of Peoria county, by scire facias, to foreclose the mortgage against McFadden, and on the 12th day of May, 1857, obtained a judgment of foreclosure thereon. That judgment was afterward reversed in the Supreme Court, at the instance of McFadden.

But during the pendency of the proceedings by scire facias in the Circuit Court, to wit, on the 15th day of March, 1855, Fortier, being an old man, between fifty and sixty years of age; a Frenchman, but little acquainted with our language; and unable to read or write, desired to procure some person to take entire charge of the matters connected with the notes and mortgage, and their collection; and accordingly he employed Joseph L. Papin, as his agent for that purpose; Fortier giving to Papin, upon the back of the receipt which had been previously given him by Manning & Merriman, an instrument as follows:

“I hereby assign to Joseph L. Papin the notes and mortgage within mentioned, and authorize him to collect said notes, by suit or otherwise, and to make such an adjustment thereof as to him may seem proper, the whole to be done at his own expense. Witness my hand and seal, this 15th March, 1855.

BARTHOLOMEW FORTIER.”

On the same day Papin gave to Fortier an instrument explanatory of the terms and condition of the foregoing assignment, as follows:

First, reciting that Fortier had assigned to him the notes and mortgage in question, describing them, then proceeds: “which notes were assigned to me (together with the said mortgage) for collection; it is understood, however, that the sum of five hundred and ten dollars was paid on said notes, prior to July 5th, 1854. Now, I hereby agree with the said Fortier, to commence, or prosecute, all necessary suits, for the collection of said notes and interest, and to pay out of my own pocket, all attorney's fees, and all other costs and expenses which have been incurred, or which may be incurred, in the collection, or in the attempt to collect, said notes.”

“And whenever, and as soon as, the said notes, or any part thereof, are collected, I agree to pay over to said Fortier, or his representatives, the two-thirds of whatever sum or sums may be so collected, both of principal and interest. Said Fortier is to be at no cost or expenses whatever about the business.

Witness my hand and seal, this 15th March, 1855.

J. L. PAPIN [SEAL.]”

Fortier, becoming apprehensive, as he alleges in his answer, of serious obstacles, intervening in the collection of the notes, on the second day of September, 1858, entered into the following agreement with McFadden, to wit:

After reciting that McFadden was then indebted to Fortier in the amount of the notes mentioned, and referring to the mortgage given to secure their payment, all being described and made a part of the agreement, the parties proceed to stipulate, that for the purpose of settling and adjusting all matters between them, McFadden was to pay over to Fortier all the rents accruing on a certain portion of the mortgaged premises, for four years from that time; out of which rents Fortier was to pay certain taxes and insurance on the property, and the residue to be applied upon the notes secured by the mortgage. A further provision in this agreement was, that McFadden should thereafter pay interest on the debt at the rate of eight per cent. per annum.

In case the buildings insured should be destroyed, Fortier to apply the amount of the insurance upon the notes.

In case McFadden desired to sell certain portions of the mortgaged property, he could do so upon paying to Fortier the sum of two thousand dollars annually, until the notes should be fully paid. Fortier was to suspend all proceedings for the collection of the notes for a period of four years from the date of the agreement; and to extend the time of payment of the same during that time, except so far as the rents and insurance might be applied for that purpose.

Fortier, also, by this agreement, released and discharged a certain portion of the premises from the mortgage.

He was also to keep the buildings, of which he was to receive the rents, insured to a certain stipulated amount. As soon as the notes should become fully paid, in any way, Fortier was to release and cancel the mortgage; and in case the whole amount should not be paid within the four years, Fortier might proceed to foreclose the mortgage upon...