Illinois Nat. Bank of Springfield v. Gwinn

• Decision Date: 23 May 1945
• Docket Number: No. 28393.,28393.
• Citation: 390 Ill. 345,61 N.E.2d 249
• Parties: ILLINOIS NAT. BANK OF SPRINGFIELD et al. v. GWINN et al.
• Court: Illinois Supreme Court

390 Ill. 345

61 N.E.2d 249

ILLINOIS NAT. BANK OF SPRINGFIELD et al.

v.GWINN et al.

No. 28393.

Supreme Court of Illinois.

May 23, 1945.

Appeal from Circuit Court, Douglas County; William S. Bodman, judge.

Suit by Illinois National Bank of Springfield, trustee, and others against A. Lee Gwinn and others, to foreclose a mortgage. From a decree directing master in chancery to accept from defendant Elmer Ellsworth Gwinn, Jr., a specified sum as redemption money, and directing issuance of certificate of redemption, W. T. Burnside, assignee of certificate of purchase, appeals.

Affirmed.

J. L. Sullivan, of Paris, E. E. Denison, of Marion, and George E. Nichols, of Tuscola, for appellant.

H. F. Simonson and Meyer & Franklin, all of Champaign, for appellees.

THOMPSON, Justice.

This is an appeal from a decree of the circuit court of Douglas county, entered August 22, 1944, directing the master in chancery of the court to accept from the defendant, Elmer Ellsworth Gwinn, Jr., as redemption money, the sum of $49,049, which he had on June 20, 1944, brought into court, and further directing the master to issue a certificate of redemption evidencing that the real estate sold on February 16, 1942, under a decree of foreclosure entered in this cause, had thereby been redeemed from said sale.

The property involved in the proceedings was formerly owned by Elmer E. Gwinn, the father of the redeeming defendant. On April 24, 1922, the senior Gwinn, together with his wife, Janice Gwinn, conveyed the premises by warranty deed to A. Lee Gwinn, as trustee. This deed, after reciting that there were mortgages and other liens against the real estate conveyed, that the grantor, Elmer E. Gwinn, was also otherwise heavily indebted, that his creditors were pressing him for payment of his obligations, and that he was wholly unable to pay the interest on the mortgage liens and to pay the other liens, debts, and obligations, authorized and directed A. Lee Gwinn, as trustee, to take possession of the premises and manage and control the same, either by personally farming or superintending the farming thereof, or by renting the same and collecting the rents therefrom, and out of the income to annually retain six per cent for his services as trustee, pay the interest on the liens and other debts, and after so doing, to annually contribute from the income, for the support and maintenance of Elmer E. Gwinn and his family, such an amount or amounts from time to time as would support and maintain them in a reasonable way, and apply any remaining income in payment of the liens and other debts. The trustee was given power to extend the time of payment of the liens and indebtedness and to execute new notes, bearing such rates of interest and payable at such times as the trustee might think best, and to secure the payment of such notes by mortgages or deeds of trust on the premises, and to extend the time of maturity of such new notes, the power to make such new notes, mortgages and deeds of trust to be extended and continued until said liens and debts were fully paid and discharged. The deed also authorized the trustee, in case he might think best or in case an extension of time for the payment of any of said liens or indebtedness could not be secured, to sell and convey a part or portion of the premises. The deed further provided that if, before the death of Elmer E. Gwinn, all the indebtedness should be fully paid and satisfied, then the trustee, after paying the expenses of managing and controlling the premises and his own compensation as trustee, should thereafter and until the death of the grantor, Elmer E. Gwinn, pay out the remainder of the income for the support and maintenance of Elmer E. Gwinn and his family; and immediately upon the death of the said Elmer E. Gwinn, the trustee should make a deed conveying to the grantor Janice Gwinn, if she was then living and the widow of Elmer E. Gwinn, a life estate in an equal one-third part, quantity and quality relatively considered, of all of said premises remaining unsold, and that immediately after making the deed to Janice Gwinn, if any such be so made, or if no such deed be so made, then immediately after the death of Elmer E. Gwinn, if said liens and debts be then fully paid, the trustee should make a deed of conveyance of all of the premises not then sold to the bodily heirs of the said Elmer E. Gwinn, who survive him, excluding therefrom his son, Andrew B. Gwinn, the said deed of conveyance to be made subject to the interest in said premises that the trustee shall have conveyed to the said Janice Gwinn, in case she survived the said Elmer E. Gwinn and became his widow at his death. There were other provisions in the deed of trust concerning to whom the conveyance should be made in the event Elmer E. Gwinn should leave no bodily heirs surviving except the said Andrew B. Gwinn or persons who were the bodily heirs of the said Andrew B. Gwinn, and concerning the proportions in which the title should vest in the bodily heirs of the said Elmer E. Gwinn, none of which provisions are material to a consideration of the questions involved. The deed further provided that if the liens and other debts of the grantor, Elmer E. Gwinn, should not be paid at the time of his death, the trustee should thereafter retain the title to the premises and continue to manage and control the same, as in the deed provided, until he should be enabled therefrom to pay all said liens and debts and secure a discharge of the same, or that the trustee, at his option, as in the deed provided, might sell and convey sufficient of the premises to enable him, with the proceeds of said sale, to pay and discharge the liens and debts, and that when the same had been fully accomplished, then the trustee should make the trustee's deed or deeds for said premises to the persons, for the purpose, and for the same interests, and in the same way and manner, as before provided therein.

Thereafter, on August 15, 1924, A. Lee Gwinn, as trustee, in pursuance of the authority given him by the deed of trust of April 24, 1922, executed and delivered to the plaintiff, The Illinois National Bank of Springfield, a note for the principal sum of $32,000, payable five years after date, with interest at six per cent, together with a mortgage securing the same on the trust property.

Elmer E. Gwinn, one of the grantors in the deed of trust, died April 2, 1941, leaving surviving as his only bodily heirs, his sons, Andrew B. Gwinn and Elmer Ellsworth Gwinn, Jr. Janice Gwinn, the other grantor, who, on April 24, 1922, was the wife of the grantor Elmer E. Gwinn, had on March 15, 1928, obtained a divorce from him, and was, at the time of the death of Elmer E. Gwinn, married to, and the wife of, one Mack Portwood.

On May 5, 1941, The Illinois National Bank of Springfield filed its complaint herein for foreclosure of the $32,000 mortgage, making, among others, Andrew B. Gwinn, Elmer Ellsworth Gwinn, Jr., and Janice Gwinn, then Janice Portwood, parties defendant. The decree for foreclosure and sale was entered January 9, 1942. The master in chancery reported that on February 16, 1942, he sold the premises as directed by the decree; that the same were purchased at such sale by the plaintiff, The Illinois National Bank of Springfield, for the sum of $43,000; and that the moneys received from said sale were insufficient to the extent of $7,205.03 to pay the amount due the plaintiff with interest and costs. The sale was approved by the court, and a finding made that there was still due the plaintiff the sum of $7,205.03, under and by virtue of the former decree entered in the cause; but no deficiency judgment was entered on such finding either then or any time thereafter. After the foreclosure sale, the certificate of purchase and all claims of the plaintiff because of the deficiency were sold and assigned to appellant, W. T. Burnside.

On February 16, 1943, judgment by confession in the sum of $3926.20 was entered in favor of Andrew Burkey Gwinn against A. Lee Gwinn, as trustee under the deed of trust dated April 24, 1922. An execution was issued and placed in the sheriff's hands with $45,594.36 for the purpose of making redemption from the master's sale of February 16, 1942. A certificate of redemption was issued February 18, 1943. The sheriff made a levy and on March 19, 1943, the property was sold to Burnside for $51,616.32. No further redemption having been made, the sheriff, on October 25, 1943, delivered his deed to Burnside, who has since been in possession of the property, claiming to own the same in fee simple under and by virtue of the sheriff's deed. In the meantime, on June 8, 1943, the foreclosure case was, by order of court, stricken from the docket.

April 24, 1944, on motion of appellee Elmer Ellsworth Gwinn, Jr., the foreclosure proceedings were reinstated on the docket. In the petition which he had filed asking for an accounting and other relief, he set up that he was entitled to and it was his intention to redeem from said foreclosure sale, in accordance with the provisions of section 18 of the Judgments Act, Ill.Rev.Stat.1943, chap. 77, par. 18, and the provisions of section 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended October 6, 1942, 50 U.S.C.A.Appendix s 501 et seq. Said appellee, on June 20, 1944, brought into open court the sum of $49,049, and made an oral motion that the master be instructed to accept the same and issue a redemption certificate. This motion was resisted by Burnside and a counter motion made by him that it be dismissed and the cause stricken from the docket. It was stipulated that Elmer Ellsworth Gwinn, Jr., was, on the date of the commencement of the foreclosure proceedings, has since continuously been, and still is a member of the armed services of the United States on active duty with the United States navy. On August 22, 1944, the order appealed from was entered, which directed the...