Holmes v. Smythe

• Decision Date: 30 September 1881
• Citation: 1881 WL 10639,100 Ill. 413
• Parties: WILLIAM M. HOLMES et al.v.ARAMENTIA M. SMYTHE et al.
• Court: Illinois Supreme Court

100 Ill. 413

1881 WL 10639 (Ill.)

WILLIAM M. HOLMES et al.

v.ARAMENTIA M. SMYTHE et al.

Supreme Court of Illinois.

Filed at Springfield Sept. 30, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Piatt county; the Hon. C. B. SMITH, Judge, presiding.

Appellees filed their bill in equity in the circuit court of Piatt county against appellants, alleging that appellee Calvin R. Smythe was the owner of certain lots therein described, which he, with his wife, the appellee Aramentia M. Smythe, occupied as a homestead; that on October 4, 1875, appellees executed a mortgage on said premises to the appellant the Monticello Mutual Building, Loan and Homestead Association, to secure the payment of a note for $600, with interest at the rate of ten per cent per annum; that the only consideration for such a note was a loan by said association to said appellee Calvin R. Smythe, of $420; that said association charged $180 for the loan of said $420; that said appellee Calvin R. Smythe has since paid said association the sum of $173.41; that said association advertised said premises for sale on December 2, 1878, without having obtained a judgment or decree therefor; that said advertisement claimed $873.40 to be due; that on December 2, 1878, the solicitor of said association sold said premises to said association for $633.33; that at such sale the bidders were notified that the amount exceeding $350 was for usurious interest; that at the time of such sale there was only due $350, which appellees were ready and willing to pay, and have since offered to pay, but that said association has refused to receive the same in satisfaction of said note; that said sum of $180 was usurious; that appellees have continued to occupy said premises as a homestead; that at the February term, 1879, of the Piatt circuit court, said association obtained a judgment against the appellee Calvin R. Smythe, for the possession of said premises; that the appellee Aramentia M. Smythe was not a party to such judgment, although she was in possession of said premises when said suit was commenced, and occupied the same with her husband, the appellee Calvin R. Smythe, as a homestead; that a writ for the possession of said premises was issued on such judgment against the appellee Calvin R. Smythe, and directed to the appellant Holmes, sheriff of Piatt county, etc.,--and the prayer is, that the sale may be set aside and the deed declared void, that an account may be taken, etc., and that appellants be enjoined from dispossessing appellees, etc.

The answer of appellants admits the execution of the note and mortgage, and that appellees owned and occupied the premises as a homestead, substantially as set forth in the bill, and that the facts are as embodied in the following stipulation of the counsel of the respective parties:

It is stipulated and agreed between the complainants in the above entitled cause and the defendants, that the complainant Calvin R. Smythe was a member of said association October 4, 1875, and at a meeting of the board of directors of said association held on that day, said Smythe obtained a loan from said association, under the rules and regulations of the charter of said association and of the statute of Illinois, under which said association is organized, amounting to the sum of $600; that said Smythe bid as a premium for said loan the sum of $180, which was deducted from said sum of $600, leaving the sum of $420, which said Smythe received the benefit of from said association; that the mortgage to secure said loan of $600 was for the whole amount of said $600; that it was executed to said association by said Smythe and wife, and duly recorded; that said Smythe became a member of said association in September, 1875, purchasing at that time eight shares of the stock of said association for $129.52, for which he executed his note to said association in addition to the note for $600, which he afterwards executed for said loan of $600, making in all the sum of $729.52, for which the said association holds the notes of said Smythe; that said Smythe, from the time he became a member of said association till the month of February, 1877, paid said association, under the provision of the charter, $68 on dues, $88.42 on interest, and $16.62 on fines, making a total of $173.04; that said Smythe never paid anything to said association after February 3, 1877, and that at a meeting of the board of directors of said association, held December 3, 1877, said board directed the solicitor of said association to proceed to advertise and sell the mortgaged premises under the power contained in said mortgage; that at that time said Smythe was more than six months in default in his payments to said association; that said association, by its solicitor, did, on the 2d day of December, 1878, sell said premises under the power contained in said mortgage, and the same was struck off and sold to the association for the sum of $633.33, and said association received a deed for said premises in accordance with the provisions of such mortgage; that said premium was deducted, and said fines assessed and collected, in accordance with the provisions of the charter of said association; that the legal title to said premises at the time said Smythe and wife executed said mortgage to said association, and up to the time said premises were sold by said association as aforesaid, was in the said Calvin R. Smythe; that at the February term, 1879, of the circuit court of Piatt county, said association obtained a judgment against said Calvin R. Smythe for the possession of said premises; that said Aramentia M. Smythe was not in any way made a party to such suit; that she was, at the time such suit was commenced, residing with her husband, Calvin R. Smythe, on said premises, and that a writ of restitution issued on such judgment, and is now in the hands of said defendant William M. Holmes, sheriff of Piatt county aforesaid, for execution; that said association was organized under the act of the General Assembly of the State of Illinois, entitled “An act to enable associations of persons to become a body corporate to raise funds to be loaned only among its members,” approved April 4, 1872, in force July 1, 1872; that the aforesaid facts are to be submitted to the court either on motion to dissolve the injunction, or on the hearing, and that the only points to be decided by the court are whether said association had the legal right to deduct the aforesaid premium and assess and collect the aforesaid fines; and whether such acts constitute usury on the part of said association; and whether the complainants are not entitled to have the mortgaged premises sold on the mortgage of said association and that of the complainants subject to redemption; and whether the fact of said Aramentia M. Smythe not being made a party to said detainer proceedings is any defence as against the writ issued...