Honnihan v. Friedman
| Decision Date | 31 May 1883 |
| Citation | 13 Bradw. 226,13 Ill.App. 226 |
| Parties | JEREMIAH HONNIHANv.JOHN FRIEDMAN. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county; the Hon. JOHN BURNS, Judge, presiding. Opinion filed July 27, 1883.
Mr. GEORGE A. WILSON and Messrs. PUTERBAUGH & PUTERBAUGH, for appellant; cited Lucas v. Nichols, 66 Ill. 41.
Messrs. STARR & STARR, for appellee; cited Stuber v. Schack, 83 Ill. 191.LACEY, P. J.
Appellant filed his bill in equity in the circuit court, seeking to redeem certain lands of his from sheriff's sale made under execution issued on a judgment of foreclosure of a mortgage in certain scire facias proceedings, the judgment having been entered Dec. 24, 1880, and the sale taking place March 18, 1881. The judgment was for the sum of $2,793.30, and the amount for which the land was sold was $2,937.15. The court below sustained a demurrer to the bill, and the appellant abiding his bill, the same was dismissed at his costs and an appeal taken to this court.
The bill was filed June 24, 1882, some days after the expiration of the fifteen months allowed by statute in which redemption could be made, even by judgment creditors. The grounds on which a redemption is sought, are certain fraudulent representations and promises and agreement made by appellee to and with appellant, in regard to the former's right to redeem after the expiration of the time allowed by law. By the demurrer, the allegations of the bill were admitted, and must be regarded as true as far as well pleaded. The substance of the allegations of the bill, as regards the alleged fraud and agreement, is as follows: That the farm is worth at least $1,600 more than the money required to redeem, and that appellee at different times before and after the sale and before the time of redemption expired, fraudulently and with the intent to wrongfully obtain appellant's farm for the sum bid on it, voluntarily stated to him at a time when appellant had his arrangements nearly completed to obtain the money necessary to redeem, and knowing that fact, that he could have at least six months after the twelve months had expired in which to redeem, and that if appellant should not be able to obtain the requisite sum of money in six months time after the 19th day of March, 1882, that then appellant might have all the time he might deem necessary, and represented that he, appellee, would not, under any circumstances whatever, take any advantage of appellant on account of the expiration of the legal time to redeem, and would not, under any circumstances, deprive appellant of his home; that he was appellant's neighbor and friend, and would treat and deal with him as a neighbor and friend. That on the 10th day of March, in consideration of the time of redemption being extended beyond the time allowed by law, it was agreed between them that appellant should pay appellee all taxes and assessments paid by the latter on the premises with eight per cent. interest thereon, and in addition thereto, appellant agreed to pay all costs and expenses, including a reasonable attorney's fee, which appellee had expended or to be paid him on account of appellant's failure to redeem from said sale within the time allowed by law.
That these propositions, promises and representations were made for the purpose of misleading appellant, and for the purpose of preventing him from making the proper and necessary effort to obtain and pay appellee the amount due him within the time allowed for redemption, for the purpose of obtaining title to the farm for the amount of his bid. That appellant fully relied on such promises and representations, and, for that reason, allowed the twelve months allowed for redemption to expire, being fully able to have raised the money within the time. That on or about the 1st day of June, 1882, after the time for redemption had expired, appellant offered to fully redeem from said sale, but that the appellee fully refused, and informed him that he would not be satisfied with anything less than appellant's farm. The bill offered to redeem and pay all that was due. It is insisted on the part of counsel for appellee, that there is no consideration for the agreement, that there was no specified time for the fulfillment, and that the bill does not allege a mutual agreement. In this case the consideration that is claimed on the part of the appellant is, that he gave up the legal right to redeem within the time required by law upon the promise that the time should be extended at least six months. If this case rested simply upon the ground of contract, we think that this would be consideration enough, and, besides, it is claimed that appellant promised, in consideration of the extension of the time for redemption, to pay appellee certain extra costs and expenses which he would not be liable in law to pay if he redeemed within the time allowed by law. It is claimed that no definite agreement was made by ...
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Benckendorf v. Streator Federal Sav. & Loan Ass'n
...be of no benefit to them after such right of redemption had expired.' The same question was before this Court in the case of Honnihan v. Friedman, 13 Ill.App. 226. There, as in the case we are now considering, it is insisted there was no consideration for the promise to extend the time to r......
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