Heath v. Hall

• Decision Date: 30 September 1871
• Citation: 1871 WL 8147,60 Ill. 344
• Parties: MONROE HEATHv.ISAAC K. HALL et al.
• Court: Illinois Supreme Court

60 Ill. 344

1871 WL 8147 (Ill.)

MONROE HEATH

v.ISAAC K. HALL et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

This was a suit in equity, brought by Monroe Heath, in the Superior Court of Cook county, against Isaac K. Hall, George M. Huntoon and Alexander McDaniels, to redeem from a mortgage executed to secure several promissory notes. The mortgage and notes were assigned and the equity of redemption was conveyed, and all parties in interest were brought before the court. On a hearing in the court below, the relief was denied, and the bill dismissed at the costs of complainant, and he brings the case to this court by appeal and assigns errors on the record, and asks a reversal.

Messrs. WILKINSON, SACKETT & BEAN, for the appellant.

Mr. R. H. FORRESTER, for the appellees. Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 13th day of July, 1867, Isaac K. Hall, one of the appellees, being the owner of the premises in question, executed a mortgage on the same to one Edward H. Mulford, to secure the payment of the sum of $900 according to the tenor and effect of five certain promissory notes made to said Mulford, one for $100, payable in one year from date, and the other four for $200 each, payable in two, three, four and five years after date, respectively, with seven per cent interest, payable annually.

The condition of the mortgage was as follows:

“Provided and agreed, that if default be made in the payment of said promissory notes, either of principal or interest, on the days whereon the same shall become due and payable, the whole of said principal and interest, secured by the said notes, shall, thereupon, at the option of the said party of the second part, (Edward H. Mulford,) become immediately due and payable. And this mortgage may be immediately foreclosed to pay the same, by the said party of the second part,” etc., “or the said party of the second part, his heirs, executors, administrators or assigns, after publishing a notice in a newspaper published in the city of Chicago, thirty days before the day of such sale, may sell the said premises, and all right and equity of redemption of said Isaac K. Hall, party of the first part, his heirs and assigns therein, at public auction, at the court house door, in the city of Chicago, to the highest bidder for cash, at the time mentioned in such notice. And the said party of the first part hereby specially covenants and agrees, to and with the said party of the second part, to waive his right and equity and redemption, and the said party of the second part to make, execute and deliver to the purchaser or purchasers thereof a deed or deeds for the premises so sold, and out of the proceeds of such sale to pay all costs and expenses incurred in advertising and selling said premises, all the principal and interest due on said notes, and to render the overplus, if any, to said Isaac K. Hall, his heirs or assigns,” etc. On the 30th day of October, 1868, Hall and wife conveyed the premises to Cornelia Rogers by warranty deed, subject to the mortgage.

On the 25th day of January, 1869, Cornelia Rogers and husband conveyed the same premises to appellant, Heath, subject to the mortgage.

On the 9th day of September, 1869, Mulford made an assignment and transfer of the notes and mortgage, and all his interest in the mortgaged premises, to George M. Huntoon.

On the 15th day of September, 1869, Huntoon, professing to act under the power of sale contained in the mortgage, advertised the property for sale at the door of the court house in Chicago, at ten o'clock in the forenoon, on the 20th day of October, 1869. And on the said 20th day of October, Huntoon made and delivered to Alexander McDaniels a mortgagee's deed of the premises, under and in pursuance of an alleged sale at the time and place mentioned in the notice, for the sum of $1100.

On the 15th day of December, 1869, appellant filed his bill in chancery against Hall, Huntoon and McDaniels, setting forth the advertisement of notice of the sale of the mortgaged premises by Huntoon, as to take place on the 20th day of October, 1869, at the hour of ten o'clock in the forenoon; and alleging that, for the purpose of protecting his, appellant's, interest in the mortgaged premises, and bidding at the sale an...