Kent v. Mason

• Decision Date: 30 September 1875
• Citation: 79 Ill. 540,1875 WL 8683
• Parties: EDMUND B. KENT, Admr.v.J. V. MASON, Exr.
• Court: Illinois Supreme Court

79 Ill. 540

1875 WL 8683 (Ill.)

EDMUND B. KENT, Admr.

v.J.

v. MASON, Exr.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. H. BIGELOW, for the appellant.

Messrs. STEWART & PHELPS, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

These proceedings originated in the court of probate of Warren county, in which court, at the May term, 1872. Edmund R. Kent, as administrator on the estate of Sylvester S. Gould, deceased, commenced an action against J. V. Mason, as executor of Jeremiah Mason, deceased, to recover the amount of two several promissory notes executed by Mason, in his lifetime, to Gould, in his lifetime, one for twelve hundred dollars, dated January 9, 1860, due two years after date, with ten per cent interest, on which was indorsed a payment of two hundred dollars, as having been made January 9, 1861. The other note bore date May 24, 1860, payable one year after date, and for the sum of four hundred dollars, with ten per cent interest.

The cause was continued from term to term, until December term, 1874, at which term there was a trial, and judgment in favor of Gould's administrator, for the sum of three thousand six hundred and fifty-one dollars and eighty-three cents.

An appeal was taken from this judgment by the executo?? of Mason to the circuit court, where the cause was tried de noro at the July term, 1875, and judgment rendered in favor of the executor.

To reverse this judgment, Gould's administrator appeals, and assigns as error, giving improper instructions for defendant, and refusing proper instructions and modifying those asked by the plaintiff, and admitting improper testimony on behalf of the defendant, and excluding proper testimony offered by the plaintiff.

It appears the note first above described was secured by a deed of trust from Mason to Zeno E. Spring, as trustee, on the south-east quarter of section 17, in township 10 north, range 4 east of the fourth principal meridian. The other note for four hundred dollars was not secured.

It further appears there were prior incumbrances to a large amount on the tract conveyed in trust to Spring, and that Mason's real estate was much incumbered by mortgages and deeds of trust, several of which became the property or under the control of Quincy A. Drum. It was claimed these notes to Gould became the property of Drum, and were settled and paid by Mason to Drum in a settlement had by them shortly before their death.

The testimony of young Hamilton was offered...