Funk v. James Mcreynolds' Adm'rs.

• Decision Date: 31 January 1864
• Parties: JESSE FUNKv.JAMES MCREYNOLDS' Adm'rs.
• Court: Illinois Supreme Court

33 Ill. 481

1864 WL 2958 (Ill.)

JESSE FUNK

v.JAMES MCREYNOLDS' Adm'rs.

Supreme Court of Illinois.

January Term, 1864.

ERROR to Circuit Court of Piatt County.

Foreclosure bill filed by plaintiff in error, as assignee of the judgment of $504.23 recovered in Sept. 1859 by John A. Brittenham, and of the note maturing April 1, 1863, (more particularly described by the court in their opinion,) against Asher W. Tinder, mortgagor, Daniel Kelley,--to whom the premises were, Sept. 21, 1860, conveyed by said Tinder,--and the administrators and unknown heirs of James McReynolds, deceased.

The circumstances attending the execution of the notes and mortgage, their assignment, &c., are fully stated by the court, and need not here be repeated.

A cross-bill was filed by McReynolds' administrators for a foreclosure to enforce payment of the notes assigned to their intestate and then due to and held by them; and also an answer to the original bill by Allen McReynolds, as heir of said James McReynolds.

“On this 10th day of October, A. D. 1863, being the 6th day of the said term, this cause came on to be heard upon complainant's amended bill, the answer of Jacob Piatt and McReynolds, and replication of complainant, and the cross-bill of said Jacob Piatt and Allen McReynolds, as administrators of James McReynolds, deceased, and the answer of Jesse Funk, complainant, thereto, and replication.

And it appearing to the court that the said Asher W. Tinder, Daniel Kelley, Jesse Bush and John S. Madden have been duly served with process in this cause, and that publication of notice of the pendency of this cause has been made as required by the statute to all of the non-resident defendants to this cause, and the said Asher W. Tinder, Daniel Kelley, Jesse Bush, John S. Madden, and the unknown heirs and devisees of James McReynolds, having been three times solemnly called and came not, the said amended bill of the said complainant, and the said cross-bill, are taken for confessed against them.

And it further appearing to the court that the said Asher W. Tinder did on the first day of November, 1855, execute and deliver to John A Brittenham ten several promissory notes for land purchased of him, and to secure the payment of said notes made and delivered to said Brittenham a mortgage on the said lands, to wit: Part of the W. 1/2 of the S. E. 1/4 and E. 1/2 of the S. W. 1/4 of section No. 31, township 19 north, range six E., third P. M., commencing at the S. E. corner of said section 31; thence north 82 degrees 50 minutes E. 83 poles; thence N. 13 degrees E. 46 poles; thence S. 82 degrees 50 minutes W. 57 2/3 poles; thence S. 13 degrees W. 36 poles; thence N. 82 degrees 50 minutes 57 2/3 poles; thence S. 13 degrees W. 46 poles; thence N. 82 degrees 50 minutes E. 19 1/3 poles to the beginning, containing eight acres. Also commencing at the southeast corner of the above described tract, thence N. 82 degrees 50 minutes E. 12 1/2 poles; thence N. 13 E. 46 poles; thence S. 80 degrees 50 minutes W. 12 1/2 poles; thence S. 13 E. 46 poles; thence S. 13 W. 46 poles to the place of beginning, containing three acres. Also the W. 1/2 of the S. W. 1/4 of section 16, 80 acres; the S. 1/2 of section 17, 320 acres; the N. E. 1/4 of section 20, 160 acres, and the W. 1/2 of the N. W. 1/4 of section 21, 80 acres, all in township 18 N., R. 6 E., third P. M., containing in all 651 acres. That said notes respectively, by their respective tenor and effects, became due and payable on the first day of April, in the years 1857, 1858, 1859, 1860, 1861, 1862, 1863, 1864, 1865 and 1866, bearing interest at six per cent., payable annually in advance; that one year's interest had been paid by the said Asher W. Tinder to the said John A. Brittenham in advance; that after the execution and delivery of said notes and mortgages by the said Asher W. Tinder to the said John A. Brittenham, he the said Brittenham, to wit: On the 14th day of April, 1856, for a valuable consideration, assigned the said first note falling due on the first day of April, 1857 and 1858, to the said James McReynolds, since deceased; that after said first note became due, the said James McReynolds sued the said Asher W. Tinder on the same, and obtained a judgment at law in the Piatt county Circuit Court against said Tinder, at the April, 1857, Term thereof, for the sum of $1,087.33, being the amount of said note and the interest on the same, and costs of suit; that the said James McReynolds afterwards sued out of the clerk's office of said court an execution on said judgment, and caused the same to be levied on the W 1/2 of the S. W. 1/4 of section 16, 80 acres; the S. 1/2 of section 17, 220 acres; the N. E. 1/2 of section 20, 160, and the W. 1/2 of the N. W. 1/4 of section 21, 80 acres, all in township No. 18 north, range 6 E., third P. M., containing 640 acres in all, and being all of the lands mentioned in said mortgage, except eight and three acre pieces above described, and caused the land so levied upon to be sold at sheriff's sale by the sheriff of Piatt county, Illinois, on the 13th day of October, 1857; that the said James McReynolds became the purchaser of all of said land so levied on at such sheriff's sale, for the amount of his judgment at law, and the interest and costs which had accrued on the same; that none of said land was ever redeemed from said sale, and that on the 29th day of August, 1859, the said James McReynolds took a sheriff's deed for all of the land so sold.

And it further appearing to the court, that on the 29th day of August, 1859, the said John A. Brittenham for a valuable consideration assigned the notes described in said mortgage, and due respectively on the first day of April, 1860, 1861, 1862, 1864, 1865 and 1866, to the said James McReynolds, and that the said James McReynolds died intestate on or about the 31st day of May, A. D., 1862, and that the said Allen McReynolds and Jacob Piatt, complainants in the cross-bill in this cause filed, are his legally appointed and acting administrators, and that they now hold, as a part of the personal assets of the estate of the said James McReynolds, in their characters as such administrators, the said notes falling due on the first day of April, 1858, 1860, 1861, 1862, 1864, 1865 and 1866, and that the same are unpaid.

And it further appearing to the court, that on the 24th day of January, A. D., 1861, the said John A. Brittenham assigned for a valuable consideration to Jesse Funk, the complainant in the original bill filed in this cause, the judgment which the said John A. Brittenham had obtained against the said Asher W. Tinder on the note due April 1st, 1859, and also the note in mortgage mentioned, falling due April 1st, 1863.

And it further appearing to the court that the interest on all of said notes for one year had been paid by the said Asher W. Tinder, to the said John A. Brittenham; and that the sum of $689.50 had been paid by the said Asher W. Tinder, to the said John A. Brittenham, on the said note, falling due April 1st, 1859; and that the said John A. Brittenham obtained a judgment at law against the said Asher W. Tinder, in the September, 1859, Term of the Piatt Circuit Court for the balance due on said note, falling due April 1st, 1859, to wit: $504.23; that the said judgment still remains due, unpaid and unsatisfied, and the said John A. Brittenham had assigned his interest and title in and to said judgment at law to the said Jesse Funk, complainant in the original amended bill in this cause filed; and that the said Asher W. Tinder, on or about the 21st day of September, 1860, deeded all of the lands mortgaged to the said Daniel Kelly. It is ordered by the court that this cause be referred to the master in chancery, with instructions from the court to take an account of the amount due to the said Allen McReynolds and Jacob Piatt, as administrators of James McReynolds, upon all of the said notes which have been assigned to James McReynolds by the said John A. Brittenham, including the note upon which judgment at law was obtained, and land sold by the said James McReynolds during his lifetime, to wit: on the notes falling due respectively on the first day of April, 1857, 1858, 1860, 1861 and 1862, and also to find the amount due Jesse Funk, complainant in original bill, on the notes falling due respectively on the 1st day of April, 1859 and 1863, including the unpaid principal and interest on said notes, and excluding all costs made in suits at law on the same. And the said master in chancery having taken the accounts under the instructions of the court, and reported as follows, to wit:

‘Monticello, Piatt county, Illinois, October 9th, 1863. To the Hon. C. EMMERSON, Judge of the Piatt county Circuit Court. ‘The undersigned master in chancery, of Piatt county Illinois, to whom was referred for calculation the notes in the case of Jesse Funk v. A. W. Tinder et al., chancery case No. 59, on the docket at the September Term, 1863, would beg leave to report that he finds the following amount due and unpaid, viz.:

+-----------------------------------------------------+
                ¦To Jesse Funk, on note due April 1st, 1859,¦$526 58  ¦
                +-------------------------------------------+---------¦
                ¦To Jesse Funk, on note due April 1st, 1859,¦1,416 60 ¦
                +-------------------------------------------+---------¦
                ¦                                           ¦$1,943 13¦
                +-----------------------------------------------------+
                

To Estate of James McReynolds, deceased.

+-------------------------------------------------------------------+
                ¦On note due 1st April, 1857,                   ¦$1,416 60¦         ¦
                +-----------------------------------------------+---------+---------¦
                ¦On note due 1st April, 1858,                   ¦1,416 60 ¦         ¦
                +-----------------------------------------------+---------+---------¦
                ¦On note due 1st April, 1860,                   ¦1,416 60 ¦         ¦

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