Holt v. Rees

• Decision Date: 30 September 1867
• Citation: 46 Ill. 181,1867 WL 5354
• Parties: DEVILLE R. HOLT et al., impl'd, etc.v.JAMES H. REES et al.
• Court: Illinois Supreme Court

46 Ill. 181

1867 WL 5354 (Ill.)

DEVILLE R. HOLT et al., impl'd, etc.

v.JAMES H. REES et al.

Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The facts fully appear in the opinion.

Messrs. BARKER & TULEY, for the plaintiffs in error.

Mr. JAMES L. STARK, for the defendants in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 1st of September, 1857, Rees executed to Swift, ninety bonds, for five hundred dollars each, with interest coupons attached, the interest payable semi-annually, and the principal at different periods, ranging from eight to twelve years. It was provided in said bonds that if default should be made in the payment of principal or interest, for sixty days from maturity, they should all be considered due at the option of the holder. They were secured by a mortgage on real estate in Chicago, which was also executed by Rees to Swift. A part of the bonds were paid, and, of the residue, thirty-six passed by endorsement into the hands of Reid, the original complainant in this suit, and sixteen into the hands of Clapp, defendant herein in the Circuit Court, and now one of the plaintiffs in error. No interest was paid after March, 1859, and in May, 1862, Rees gave Clapp possession of the mortgaged premises, and he leased them to plaintiffs in error, Calkins and Holt, for the term of one year. In May, 1862, Clapp, in connection with Joy, who then held the bonds now owned by Reid, renewed the lease for the term of three years. On the 30th of July, 1864, Reid filed this bill to foreclose the mortgage, making parties, Rees, the mortgagor, Clapp, the holder of the sixteen bonds, and Calkins and Holt, the tenants. The defendants answered, proofs were heard, and after two references to a Master to state the account, the court decreed that Rees pay to Reid and Clapp, the amount respectively found to be due them, within thirty days from the last day of the term, or that he deposit the amounts with the clerk, and that on making such payments, he should hold the premises discharged of the lien of the mortgage, and free from all right and title of any person claiming under it. The mortgagor paid the money into court within the thirty days. Clapp, Calkins and Holt sued out the present writ of error. The defendants in error have joined in error upon the assignment by Calkins and Holt, but as to Clapp they have pleaded as a release of errors, that, pending the suit, Clapp has surrendered his bonds to the clerk of the Court below, and received the money directed by the decree to be paid to him. To this plea Clapp demurs, and so far as relates to him, the disposition of the case depends on the issue of law made by the demurrer to this plea.

It is urged against the plea, that Clapp is not benefitted by this decree, and that therefore he is not within the cases of Thomas v. Negus, and Morgan v. Ladd, 2 Gilm. 700 and 415. But although the amount allowed him upon his bonds may be less than he was entitled to, still, so far as the decree directed the payment of any sum of money to him, to that extent it was beneficial and what the court decided in the above cited cases was, that a party cannot avail himself of that...