Gaither v. Wilson

• Decision Date: 18 January 1897
• Citation: 46 N.E. 58,164 Ill. 544
• Parties: GAITHER et al. v. WILSON et al.
• Court: Illinois Supreme Court

164 Ill. 544

46 N.E. 58

GAITHER et al.

v.WILSON et al.

Supreme Court of Illinois.

Jan. 18, 1897.

Appeal from appellate court, Fourth district.

Separate bills by John Wilson against Leonidas Gaither, John T. Fogle, and others, and by John T. Fogle against Leonidas Gaither, John Wilson, and others, to foreclose mortgages. The cases were consolidated and tried together, and, from a judgment of the appellate court (65 Ill. App. 362) affirming the decree, defendants Galther and wife and the Citizens' Building Association appeal. Affirmed.

Edwin Beecher and Robert D. Adams, for appellants.

Jacob R. Creighton, Edward C. Kramer, Geo. W. Johns, Robert P. Hanna, and Frank B. Hanna, for appellees.

CARTWRIGHT, J.

Leonidas Gaither was the owner of 40 acres of land in Wayne county, and the south half of two lots in Fairfield, in that county. He, together with his wife, Lola E. Gaither, had given three mortgages to the other parties to this litigation. The first was given to John Wilson to secure the payment of $750, the entire purchase price of the fractional lots, and covered all the property. The second was given to Fogle Bros., for $850, on the purchase of a restaurant from them, and was on the 40-acre tract alone. This mortgage had been assigned to Jack T. Fogle. The third was made to the Citizens' Building Association, to secure $500 borrowed money, and only covered the lots. It was dated the same day as the mortgage to Fogle Bros., but was not recorded until a year later. Wilson filed his bill to foreclose the mortgage on all the premises. Fogle answered the bill, and asked that Wilson be required to first sell the lots to satisfy the mortgage. Leonidas Gaither and wife and the Citizens' Building Association answered, alleging that the lots were only put in as security for about $200 of claims against the estate of Mr. Gaither's mother; and they asked that the answer be taken in the nature of a cross bill, and that Wilson should be required to release the lots. Leonidas Gaither and the Citizens' Building Association also filed in that suit a bill in the nature of a cross bill for the foreclosure of the mortgage against the lots, and they prayed that Wilson should be required to make his debt out of the land. Jack T. Fogle also filed his bill to foreclose his mortgage on the 40-acre tract. The cases were consolidated and heard as one case upon the bills, cross bills, answers, and replications, and the evidence for the respective parties. By the decree the mortgages were foreclosed, and the premises ordered to be sold separately,-the land as one parcel, and the lots as another. Out of the proceeds the master was ordered to first pay the costs of suit and expenses of sale, in proportion to the amount received from each parcel; to next pay one half of Wilson's claim, not exceeding $500, from the sale of the lots, and the other half out of the land; and then to pay Fogle's claim out of the proceeds of the land, and the association's claim out of the proceeds of the lots. The decree was affirmed by the appellate court.

The contest here is between Fogle and the building association. Wilson is content with the decree, but the mortgagors, and the building association are insisting that it should be reversed, and that he should take his pay out of the land, and leave the lots free to secure the claim of the building association. If this can be accomplished, Fogle will be a loser, since the land will not pay Wilson's mortgage and his. The ground for insisting that the tract of land should be first sold is found in the proviso to section 4 of the statute of exemptions, added to that section in 1887, as follows: ‘Provided that in all cases when such release, waiver or conveyance shall be taken by way of mortgage or security, the same shall only be operative as to such specific release, waiver or conveyance; and when the same includes different pieces of land, or the homestead is of greater value than one thousand dollars, said other lands shall be first sold before resorting to the homestead,’ etc. 3 Starr & C. Ann. St. p....