Kelly v. Germania Sav. & Loan Ass'n
| Decision Date | 27 September 1963 |
| Docket Number | No. 37695,37695 |
| Citation | 28 Ill.2d 591,192 N.E.2d 813 |
| Parties | Myrtle Lorraine KELLY, Appellant, v. GERMANIA SAVINGS AND LOAN ASSOCIATION, Appellee. |
| Court | Illinois Supreme Court |
A. Alan Hart, Alton, for appellant.
O'Neill & O'Neill, Alton (Schaefer O'Neill, Alton, of counsel), for appellee.
This is an action by the plaintiff, Myrtle Lorraine Kelly, against the defendant, Germania Savings and Loan Association, seeking in the alternative specific performance of a real-estate contract, or a declaration that the contract is an equitable mortgage. After hearing, the trial court entered a decree for the defendant, and plaintiff appeals directly to this court, a freehold being involved.
On October 21, 1958, the plaintiff and her then husband purchased the real estate in question and gave defendant a first mortgage for $9,355.80. In August of 1959, plaintiff obtained a divorce from her husband, and on September 11, 1959, plaintiff's former husband conveyed all his interest in the premises to the plaintiff. Thereafter payments on the mortgage to the defendant became several months delinquent and plaintiff consulted with the defendant's agents in an affort to save her property. As a result of these negotiations, on March 16, 1960, the plaintiff conveyed the premises to the defendant association in consideration of the cancellation of the note and mortgage. Plaintiff and defendant then entered into a contract for deed dated March 17, 1960, whereby plaintiff agreed to repurchase the real estate by contract for a price of $9,823.69 with interest payable at a rate of 7% on the unpaid balance.
Thereafter plaintiff made some payments on the contract but again became delinquent. On January 4, 1961, the defendant sent a letter to plaintiff which read as follows:
'The payments on the above contract account have become delinquent to the extent that forfeiture proceedings will be instituted unless your payments are brought up to late on or before January 11, 1961.
'If you wish to avoid this litigation, it will be necessary to make satisfactory arrangements at our office prior to January 11.'
Thereafter on January 13 or 14, 1961, the house on the real estate was substantially damaged by fire. On January 25 the plaintiff tendered as the entire delinquency on the property the sum of $402. Thereafter on January 27, the defendant executed and mailed to plaintiff a notice of forfeiture, stating that the Board of Directors of defendant elected to forfeit the contract on January 13, 1961, for failure to make monthly payments. On the same day defendant returned the $402 stating that the contract had been previously forfeited. Subsequent tenders of monthly payments by the plaintiff have also been refused on the basis of a prior forfeiture. The defendant, without notice to the plaintiff, conducted settlement negotiations with the insurance carrier for the fire loss and received an insurance settlement of $8,686.86.
Plaintiff brings the present action seeking specific performance of the contract and in the alternative asks that the transactions between the parties be construed as a mortgage giving the plaintiff the right of redemption. Defendant argues that there has been a proper forfeiture of the contract.
At the outset we find that plaintiff's suggestion that the transaction between the parties be construed as an equitable mortgage is untenable. The record discloses no fraud or overreaching on the part of defendant. The conveyance to defendant was given in consideration of the cancellation of the substantial obligation of both plaintiff and her husband, and no liability remained subsisting. The discharge of the prior mortgage of plaintiff and her husband and the execution of a new contract between defendant and plaintiff, alone, were understandingly entered into. Under the facts of this case there is no such equity as would require the transaction to be declared an equitable mortgage.
In considering the question of specific performance, the forfeiture provisions of the contract must be considered. The contract provides as follows:
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In re Motel Inv. Group, Inc.
...Tobin v. Alexander, 63 Ill.App.3d 397, 400, 20 Ill.Dec. 368, 370-71, 380 N.E.2d 45, 47-48 (1978); Kelly v. Germania Sav. & Loan Ass'n, 28 Ill.2d 591, 594, 192 N.E.2d 813, 816 (1963). Kingsley v. Roeder, 2 Ill.2d 131, 137, 117 N.E.2d 82, 85 7 Aden v. Alwardt, 76 Ill.App.3d 54, 59, 31 Ill. De......
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In re Layton
...act by the seller shows the intent to forfeit. Brown v. Jurczak, 397 Ill. 532, 74 N.E.2d 821 (1947); Kelly v. Germania Sav. & Loan Asso., 28 Ill.2d 591, 595, 192 N.E.2d 813, 816 (1963); Lovins v. Kelley, 19 Ill.2d 25, 28, 166 N.E.2d 69, 71 (1960); Miles Homes, Inc. v. Mintjal, 17 Ill.App.3d......
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McBride v. Commercial Bank of Champaign
...by May 10, 1979. By giving that deadline, the Inskips waived any right to a forfeiture before May 10. (Kelly v. Germania Savings & Loan Association (1963), 28 Ill.2d 591, 192 N.E.2d 813.) But on May 4-six days before the deadline which the Inskips had set for plaintiff to cure his default-t......
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Bocchetta v. McCourt
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