Kimmel v. Bundy

• Decision Date: 19 April 1922
• Docket Number: No. 14530.,14530.
• Citation: 302 Ill. 514,135 N.E. 56
• Parties: KIMMEL v. BUNDY.
• Court: Illinois Supreme Court

302 Ill. 514

135 N.E. 56

KIMMEL

v.BUNDY.

No. 14530.

Supreme Court of Illinois.

April 19, 1922.

Suit by Joseph P. Kimmel against E. S. Bundy. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Paul Windels, Corp. Counsel, of New York security for a debt or discharge of an obligation, and an agreement to reconvey is insufficient.

Appeal from Circuit Court, Franklin County; Julius C. Kern, Judge.

W. F. Spiller, of Benton (G. A. Hickman, of Benton, of counsel), for appellant.

W. P. Seeber and W. H. Hart, both of Benton, for appellee.

FARMER, J.

Appellant filed his bill to declare a deed made by him in December, 1911, conveying certain land to appellee, a mortgage, and that he be permitted to redeem. Appellee answered, denying the deed was a mortgage, or that it was made to secure an indebtedness to him, and claiming it was a purchase, and that he paid full consideration. On a hearing the chancellor dismissed the bill for want of equity, and this appeal is prosecuted from that decree.

Prior to the time the deed was made appellant had mortgaged the land to the Prudential Insurance Company to secure a note for $1,050. At appellant's request appellee paid that note, and appellant gave him his note for the amount paid and a mortgage on the land to secure it. He had also borrowed money in smaller sums from appellee, some of which loans were secured by mortgage and some were not. Being in need of more money, on December 8, 1911, he and appellee figured up the amount due appellee on that date, and appellant needed $500, or a little more, for his immediate use, which appellee said he would let him have. They figured up the total amount of appellant's indebtedness to appellee, including the additional $500, as $2,376.70. Appellant testified he wanted to make a mortgage for it, but appellee did not want a mortgage, but wanted a deed, and appellant made him a deed for the express consideration of $2,376.70. Appellee testified that he had all the mortgage on the land he was willing to carry, and told appellant that if he let him have an additional $500 he wanted the land, and it would then cost him more than it was worth; that appellant agreed to convey the land if appellee would give him a contract to sell it back to him, which he did. Appellant alleged in his bill and testified at the hearing that usurious interest and commissions were figured in to make the amount of the consideration, but that is not sustained by the weight of the proof, nor even by appellant's own testimony. At the time the deed was made by appellant, appellee gave him a written agreement, signed by both parties, that the appellant had the right for 12 months to buy from appellee the land for $2,376.70. Appellant, did not purchase the land, and December 7, 1912, the parties entered into another agreement, by which appellant was to have another year to buy the land for $2,650. He did not do so, and November 28, 1913, they entered into another agreement, by which appellant was given another year to buy the land for $2,925. Failing to make the purchase, November 9, 1914, they made another agreement, by which appellant was to have until November 28, 1915, to buy the land for $3,225. Appellant had possession of the 80 acres of land until the last option expired, and paid no rent. He agreed to pay the taxes, but never paid them for any year. Appellee took possession of the land when appellant's possession ceased, and has retained it ever since. The bill in this case was filed in 1919. The testimony of the parties to the suit is directly conflicting as to the purpose for which the deed was made. Appellant claimed it was made to secure the money he owed appellee, while appell...