Hibernian Banking Ass'n v. Commercial Nat. Bank of Chicago

• Decision Date: 11 October 1895
• Citation: 157 Ill. 524,41 N.E. 919
• Parties: HIBERNIAN BANKING ASS'N v. COMMERCIAL NAT. BANK OF CHICAGO.
• Court: Illinois Supreme Court

157 Ill. 524

41 N.E. 919

HIBERNIAN BANKING ASS'N

v.COMMERCIAL NAT. BANK OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Error to circuit court, Cook county; Thomas G. Windes, Judge.

Bill by the Commercial National Bank of Chicago against the Hibernian Banking Association. Complainant obtained a decree. Defendant brings error. Reversed.Wilson, Moore & McIlvaine, for plaintiff in error.

J. A. Sleeper, for defendant in error.

Bill in equity to remove cloud. The defendant in error, the Commercial National Bank of Chicago, filed its bill in equity against the plaintiff in error, the Hibernian Banking Association, in the circuit court of Cook county, to remove as a cloud upon the title to a tract of land in that county a certain warranty deed entered of record, made by one Caulfield to said association. The facts alleged and proved, or admitted by the answer, are substantially as follows:

On April 20, 1875, Bernard G. Caulfield was the owner of the undivided one-half of the land in question, his wife owning the other half, and one William H. Warder claiming to own an equitable interest in it also by virtue of a contract then of record. Bernard G. Caulfield, then owing about $8,000 to plaintiff in error for principal and interest upon a promissory note executed in 1872, jointly with one Walker, made and delivered to John V. Clarke, president of the banking association, his warranty deed for said land as security for the payment of said debt. The bill alleges and the answer admits that the deed was a mere mortgage. This deed was not recorded until November 15, 1875. A power of attorney from Caulfield to confess judgment on the note was executed and delivered with the note in 1872. Before this deed was recorded, and in September, 1875, the Central National Bank recovered judgment by confession against Caulfield for $562.04, upon which execution was issued but no sale made. A short time before the expiration of the lien of the judgment in September, 1882, the Commercial National Bank bought and had assigned to it the judgment, and thereafter, on a writ of venditioni exponas, the land was sold, and bought by the latter bank, October 23, 1882, for $800, the amount then due on the judgment. Before the purchase of this judgment, the Commercial Bank had become a creditor of Bernard G. Caulfield to about $5,000, and had also purchased certain tax titles on the land in question. On March 1, 1883, Bernard G. Caulfield and Laura, his wife, conveyed all their and each of their interests in the land in question, with other tracts, to said Commercial Bank, for the expressed consideration of $23,000, and as a part of the transaction the following contract was made between the parties:

‘This agreement, made this first day of March, A. D. 1883, between the Commercial National Bank of Chicago, Illinois, party of the first part, and Bernard G. Caulfield and Laura Caulfield, parties of the second part, witnesseth, that whereas, the said parties of the second part are indebted to said bank in the aggregate sum of $23,000, bearing interest from the 1st day of January, A. D. 1883, at 6 per cent., about one-half of which amount is for taxes advanced for said Laura Caulfield, together with the sum of $500 in cash, paid to her by said bank at the date of the execution of this agreement, and the remainder of said sum of $23,000 being a personal debt of the said Bernard G. Caulfield to the said bank; and whereas, for the purpose of securing the payment of said aggregate sum, the said parties of the second part conveyed to the said bank, by their deed of this day, all their right, title, and interest in and to blocks 1, 2, 3, and 4 in Warder's subdivision of out-lot 32 of the School Trustee's subdivision in section 16, in township 38 north, range 14 east of the third principal meridian, in Cook county, Illinois, the undivided two-thirds of which lands are the separate property of the said Laura Caulfield; and whereas, on the 23d day of October, 1882, the said bank purchased the said lands on execution sale against said Bernard G. Caulfield, and holds the sheriff's certificateof said purchase, on which, after the expiration of 15 months after the date of said sale, it will be entitled to a sheriff's deed in pursuance thereof, if no redemption shall be made; and which is only a sale and purchase of the interest of said Bernard G. Caulfield in said lands: Now, it is agreed that, as soon as the said period of redemption shall expire on said execution sale, the said bank shall, if no creditor of said Bernard G. Caulfield shall redeem, procure a sheriff's deed of the said interest of Bernard G. Caulfield upon its said certificate, and then a settlement shall be had upon the following basis: To the said sum of $23,000, and interest thereon at six per cent. from January 1st, 1893, to date of settlement, shall be added any further advances the said bank may make hereafter to protect the title to said property by payment of taxes and assessments or otherwise, with interest at six per cent. from the date of advance to the date of settlement, and the aggregate shall be paid thus: The lots in said blocks shall be appraised at their fair cash value by two appraisers, one to be chosen by each of the parties hereto, and, if they cannot agree upon cash value, then they shall select a third party, and the appraisal of a majority of the three shall be binding upon the parties hereto. All such appraisers shall live either in the city of Chicago or in the towns of Hyde Park or Lake, and own unincumbered real estate in some portion of said territory; and before making such appraisal such appraisers shall each take an oath to make a true and fair appraisement of said lots according to their best judgment and ability, after going upon such lots, and personally examining the same. After the appraisal of said lots in the manner aforesaid, the two said appraisers, if they can agree,-if they cannot agree, then a majority of the three,-are hereby authorized to lay off or assign to the said bank so much of the said lands as may be equal in value to the whole amount due said bank as aforesaid; but in doing so they shall divide the land fairly, and in such manner as to protect the rights and interests of all concerned. If such appraised value of all of said lots shall not equal the amount so due said bank, then the said Bernard G. Caulfield will pay the residue on demand to said bank; but if, after the assignment of so many of said lots as shall, at their said appraised value, equal the whole amount due said bank as aforesaid, there shall remain any other lots, all such remaining lots said bank shall forthwith convey by quitclaim deed to the said Laura Caulfield, or to such persons as she may direct. Should the said execution sale be redeemed from, the rights of the parties hereto as respects each other shall remain unchanged, but it shall in such contingency become a matter of mutual agreement whether an immediate division of said lots shall be made, or further steps taken to perfect the title to said lots before a division: provided, however, an appraisal and division in the manner above set forth will not be delayed beyond the first day of January, 1885. Should any of the said lots in the meantime, before any appraisal and division, be condemned for any public uses, the moneys that may be awarded shall be received by said bank to apply upon its said debt: provided, that said bank shall not accept any sum for damages occasioned by the taking of any of said property for public uses unless the amount thereof shall be satisfactory to the parties of the second part, or unless such damages are ascertained by a jury and competent court. Given under our hands and seals this 19th day of March, A. D. 1893.’ Signed in duplicate.

No appraisement was made under this contract as contemplated by it, and there was no setting apart to the bank, or conveyance to Laura Caulfield, of any of the lots, as mentioned in the contract. The land not having been redeemed, the Commercial Bank obtained a sheriff's deed for the undivided interest of Bernard G. Caulfield on January 24, 1884. Long prior, and in April, 1874, said Warder, who claimed an equitable interest in the land by virtue of his contract aforesaid, filed his bill in equity against the Caulfields and one Waller to enforce his interests, and afterwards, in January, 1887, the Commercial Bank intervened in Warder's suit, and filed its bill in the nature of a supplemental and cross bill against the Caulfields, Warder, and others, and afterwards, in January, 1890, obtained a decree that the title was vested in said bank, subject to the equitable rights of Warder, with the right of redemption in Laura Caulfield alone. The decree in that case further found, in pursuance of the allegations of the cross bill, that there was then due to said Commercial Bank from the Caulfields on the indebtedness mentioned in the agreement of March 1, 1883, and for moneys since advanced for taxes and otherwise to protect the title to the property, with interest thereon, $27,000, and that Laura Caulfield, in redemption of the premises under the deed and agreement of March 1, 1883, should pay the bank that amount and interest in 90 days. Said Laura did not, however, pay the $27,000, and under a subsequent order of the court the land was sold by the master and purchased by the Commercial Bank, June 12, 1890, for $27,873.50. No one redeemed, and the master conveyed the land to the bank. Before this last sale, and on December 20, 1887, Bernard G. Caulfield died intestate in Deadwood, Dak., where he had resided from some time in 1878 until his death; the suit having been revived against his heirs before the final decree. Warder released to said Laura all of his interest in the lands in controversy before such decree. Neither the Hibernian Banking Association nor Clarke was made a party to that suit. June 10, 1891, the Commercial Bank and ...