Hamilton v. Lubukee

• Decision Date: 30 September 1869
• Citation: 51 Ill. 415,1869 WL 5354,99 Am.Dec. 562
• Parties: EDWARD HAMILTONv.FERDINAND LUBUKEE et al.
• Court: Illinois Supreme Court

51 Ill. 415

1869 WL 5354 (Ill.)

99 Am.Dec. 562

EDWARD HAMILTON

v.FERDINAND LUBUKEE et al.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. JAMES REDFIELD and Mr. DAVIS J. CROCKER, for the appellant.

Messrs. ROSENTHAL & PENCE, and Mr. H. T. STEELE, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, exhibited in the Cook Circuit Court, by Edward Hamilton, complainant, against Ferdinand Lubukee, Nathan Eisendrath, Godfrey Snydacker and Moses Snydacker, members of the firm of Eisendrath & Co., and others, seeking to redeem certain lots or parts of lots in the city of Chicago, which were sold by Lubukee, under a mortgage executed by complainant and one Willard M. Fuller to Lubukee, to secure the payment of four certain promissory notes, amounting in all to $3,500, being the purchase money of the lots, and becoming due in one, two, three and four years from their date, and dated, respectively, August 1, 1860.

Answers were put in by the defendants, replications filed and proofs taken, and on the hearing the bill was dismissed for want of equity. To reverse this decree, complainant brings the record here by appeal.

It appears from the mortgage, bearing even date with the notes, that it contains a power of sale, to be exercised by the mortgagee, his heirs or assigns, in case of default in the payment of any of the notes, or of the interest. Notice of the sale was required to be made in a newspaper published in Chicago, ten days before the sale, and the mortgagee was empowered to make and deliver a deed to the purchaser thereof. It also appears the mortgage was made subject to another mortgage of $1,000 then on the premises, although not mentioned in the mortgage.

The notes were sold and delivered by Lubukee to the firm of Eisendrath & Co., and the mortgage assigned to them, the firm being then composed of Nathan Eisendrath and Godfrey Snydacker, Moses Snydacker not becoming a member of it until some months after the sale.

The first note, and the interest on the other notes, became due on the 1st day of August, 1861, and were not paid. At the request of Fuller, one of the makers of the notes and one of the mortgagors, and a partner of complainant, the premises were advertised for sale, in the name of Lubukee, in the mode required by the mortgage, and were sold to Moses Snydacker, by Lubukee, for $2,500, and subject to a former mortgage to one Swift of $1,000, which, with the interest due upon it, then amounted to $1,100. At the same time, the notes of complainant and Fuller, given for the property, were canceled by Eisendrath, by burning them in presence of Fuller, one of the makers.

The real value of the property when sold, would appear, from the testimony, to have been about $5,000.

The other defendants, nineteen in number, are purchasers of the premises, in separate parcels, of Snydacker, and have expended near $30,000 in valuable improvements upon them. The lots, without the improvements, were estimated, at the time the bill was filed, (April term, 1867,) at about $18,000. It further appears, that Moses Snydacker had divested himself of all interest in the premises before the bill was filed, to Eisendrath, in 1861, and to Hamlin and the others, subsequently, and for a valuable consideration, and that they purchased without notice of any defects or irregularities in the sale or proceedings under the mortgage, before or since the sale.

The first point made by appellant is, that the advertisement or notice of the sale described a different and other or larger indebtedness than that described in or secured by the mortgage, to wit: an indebtedness of $1,000 over and above the amount really due by the mortgage.

Admit the fact to be so, it is not shown that the property was injuriously affected by it, or bidders deterred thereby from attending the sale, nor is it shown it was so published for a fraudulent purpose; and if it was, there is no evidence the defendants, or any one of them, participated in it, or had any knowledge of it.

The next point is, that Lubukee had nothing to do with the sale, and knew nothing about it, and that Moses Snydacker fraudulently obtained from him the deed for the property, of the contents of which Lubukee was ignorant.

It appears that Lubukee, the mortgagee, was a man whose memory had become impaired by a fall, and, on his examination as a witness, did not recollect distinctly the circumstances attending the sale and the execution of the deed, but the papers evidencing it, signed with his name, were substantiated by him, he acknowledging his signature as his own handwriting. The sale was advertised in the name of Lubukee, and the deed to the purchaser made and signed by him and delivered to the purchaser. And here appellant makes another point, that Lubukee had assigned the notes, and the mortgage, being an incident only, went with the notes to the assignee, and consequently, the power to...