Graham v. Mullins

• Decision Date: 03 September 1936
• Docket Number: Gen. No. 9091
• Citation: 3 N.E.2d 723,286 Ill.App. 393
• Parties: GRAHAM ET UX. v. MULLINS.
• Court: United States Appellate Court of Illinois

286 Ill.App. 393

3 N.E.2d 723

GRAHAM ET UX.

v.MULLINS.

Gen. No. 9091

Appellate Court of Illinois, Second District.

Sept. 3, 1936.

Appeal from Circuit Court, Lake County; Edward D. Shurtleff, Judge.

Suit by Thomas E. Graham and Katherine Graham, his wife, against Logan L. Mullins. From a decree for plaintiffs, defendant appeals.

Affirmed.

Gerald C. Snyder, of Waukegan, for appellant.

John V. Mooradian and Bernard Decker, both of Waukegan, for appellees.

HUFFMAN, Presiding Justice.

This was a suit in equity by appellees to redeem certain premises from appellant on the grounds that the title held thereto by appellant was held by him as mortgagee. The court entered decree in favor of appellees. This appeal follows.

Appellees were the owners of the premises in question. The same were then subject to a mortgage indebtedness. The mortgage was foreclosed and the premises sold thereunder for $2,047.76. Appellees' statutory period of redemption, as mortgagors, had expired. Appellant was a judgment creditor of appellees, on a $320 note. Prior to the expiration of fifteen months, he redeemed the premises from the foreclosure sale. Appellees had solicited appellant to loan them the money to redeem, or to take such action on their behalf in order that they might later repay him and thus save their farm. It appears that they had made efforts to secure the money necessary for the redemption, before going to see appellant, but that the parties with whom they had been negotiating were at that time unable to obtain possession of the necessary cash. Appellant, at the solicitation of appellees, made redemption of the premises as aforesaid, on next to the last day of the fifteen-month period, and executed and delivered to appellees a contract for the resale of the premises, a portion of which is as follows:

“Whereas, I Logan L. Mullins of Chicago, Illinois, have obtained a judgment in the Circuit Court of Lake County, Illinois, against Thomas E. Graham, and, “Whereas, it is my desire and intention to exercise my legal rights as holder of such judgment for the purpose of redeeming the real estate hereinafter described owned by the said Thomas E. Graham, from the foreclosure sale upon a certain mortgage dated December 17, 1928 and recorded in the Recorder's Office of Lake County, Illinois, in Book 417 of Mortgages, on page 16, as Document No. 329387, which mortgage was foreclosed in a cause entitled Merchants & Farmers Bank, a corporation, vs. Thomas E. Graham, et al, in the Circuit Court of Lake County, Illinois, Gen. No. 31155; and

“Whereas, it is my intention to permit the said Thomas E. Graham to purchase said real estate from me if and in the event I acquire the same by such redemption or purchase of any certificate of sale;

“Now, therefore, in consideration of the sum of Ten Dollars ($10.00) to me in hand paid by the said Thomas E. Graham of Round Lake, Illinois, I do hereby give to the said Thomas E. Graham, his heirs and assigns, the privilege of purchasing on or before the 15th day of February, A. D. 1935, the following described real estate, situated in the County of Lake and State of Illinois, to-wit:”

Then follows the description of the premises together with the price to be paid, and fixing as the date for resale, February 15, 1935. Appellees instituted this suit at the March term, 1935, of the circuit court of Lake county, to compel appellant to convey the premises to them in accordance with the terms of the contract of resale.

[1] Cases dealing with bills in equity to redeem from alleged mortgages, under circumstances similar to those existing in this case, are numerous. Where land is conveyed in fee by deed, and there is no condition or defeasance either in the deed or in a collateral paper, parol evidence may be resorted to for the purpose of establishing that the deed was given as a mortgage. Keithley v. Wood, ...