Hartman v. Pistorius

• Decision Date: 25 February 1911
• Citation: 248 Ill. 568,94 N.E. 131
• Parties: HARTMAN v. PISTORIUS et al.
• Court: Illinois Supreme Court

248 Ill. 568

94 N.E. 131

HARTMAN

v.PISTORIUS et al.

Supreme Court of Illinois.

Feb. 25, 1911.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Wayne County; J. R. Creighton, Judge.

Action by John Hartman against F. H. Pistorius and C. W. Pistorius and others. From a judgment for plaintiff, defendants named appealed to the Appellate Court, where the decree was modified, and defendants bring error. Reversed and remanded to the Circuit Court, with directions to dismiss the bill as to defendants named.Mills Bros., for plaintiffs in error.

W. W. Shelly, for defendant in error.

CARTWRIGHT, J.

John Hartman, defendant in error, filed his bill in the circuit court of Wayne county against F. H. Pistorius and C. W. Pistorius, plaintiffs in error, and others, to foreclose a chattel mortgage on 300 acres of standing timber. Plaintiffs in error were made defendants under an averment that they had or claimed some interest in the mortgaged property and had assumed, in writing, the payment of the mortgage debt. Plaintiffs in error denied by their answer that they had assumed, in writing or otherwise, the payment of the mortgage debt and disclaimed all interest in the property. Upon a hearing the court found that plaintiffs in error had assumed and agreed in writing, for a valuable consideration, to pay the mortgage debt, and decreed a foreclosure of the mortgage and a sale of the timber. By the decree it was provided that if the amount of the sale should be insufficient to pay the mortgage debt, with interest, costs, and expenses, the plaintiffs in error and three other defendants should pay the amount of the deficiency; that the master in chancery should specify such amount in his report, and upon confirmation of the report the defendant in error should have execution therefor. The court also allowed §100 to the defendant in error as a solicitor's fee, to be taxed as costs. All of the parties except plaintiffs in error were content with the decree, but they appealed from it to the Appellate Court for the Fourth District, and that court reversed the decree as to the solicitor's fee but affirmed it in all other respects. On petition of the plaintiffs in error to this court a writ of certiorari was awarded to review the judgment of the Appellate Court.

The material facts are as follows: On July 27, 1907, Edward A. Haynes sold to H. A. Six 300 acres of growing timber in Wayne county and Six was to clear at least 40 acres of land each year. On August 1, 1907, Six borrowed $1,500 from John Hartman, the defendant in error, and gave his note for said sum due in six months, with 7 per cent. interest, secured by a chattel mortgage on the timber. On September 7, 1907, Six conveyed the timber to Brown & Osby, who assumed the payment of the mortgage. On October 15, 1907, Brown & Osby entered into a written contract with F. H. Pistorius and C. W. Pistorius, plaintiffs in error, by which Brown & Osby, as parties of the first part, agreed to pay to plaintiffs in error, as parties of the second part, $350, and to convey to plaintiffs in error all right, title, and interest in the timber, subject to the mortgage of $1,500, which plaintiffs in error agreed to pay. Plaintiffs in error on their part agreed to convey to Brown & Osby 80 acres of land in Perry county, subject to a mortgage of $1,600, which was to be assumed by Brown & Osby. Plaintiffs in error reserved the timber on the 80 acres, to be removed within two years, and merchantable titles were to be furnished by both parties. Nothing was done in pursuance of the agreement except that an affidavit of Haynes was procured, to the effect that he had made no transfers or conveyances of the timber except to Six, and that there were no outstanding unsatisfied judgments against him. No abstracts of title or other evidences of title in either party were furnished, and no merchantable title, or any other sort of title, was shown or conveyed by any one. Plaintiffs in error never took possession of the timber, and no timber was removed by them or any one else. The contract was deposited with an attorney for safe-keeping, and one or the other of the parties had a copy of it. Hartman, the defendant in error, was notified of the contract and made inquiry as to the financial standing of the plaintiffs in error, and being satisfied with the arrangement made no objection; but he did not notify either of the parties of his consent and had no dealings concerning the matter with the plaintiffs in error. On December 14, 1907, the contract between Brown & Osby and plaintiffs in error was abandoned by mutual consent, and they entered into a second agreement, written across the face of the copy of the original agreement, by which...