Kirchoff v. Union Mut. Life Ins. Co.
| Decision Date | 02 April 1889 |
| Citation | 20 N.E. 808,128 Ill. 199 |
| Parties | KIRCHOFF v. UNION MUT. LIFE INS. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
On petition for rehearing. See former opinion, 17 N. E. Rep. 716.
W. S. Harbert and George R. Daley, for appellant.
Leonard Swett and P. S. Groscup, for appellee.
MODIFIED OPINION.
This appeal must be dismissed. It should have been taken to the appellate court of the First district, and it is therefore improperly here. The bill seeks a decree declaring a certain deed, absolute on its face, to be but a mortgage, and that appellant be allowed to redeem from it as such. The material allegations of the bill, so far as they are necessary to show the character of the question involved, are as follows: That on or about the 8th day of May, 1871, complainant, together with her husband, Julius Kirchoff, and her mother, Angela Diversey, borrowed of the Union Mutual Life Insurance Company the sum of $60,000, and, to secure the payment thereof, executed their promissory note for said sum, payable to said company, and also a trustdeed to Levi D. Boone, as trustee, on a large amount of property, including lots 2 and 4, in block 21, of the canal trustees' subdivision of the south fractional quarter of section 3, township 39 north, range 14 east of the third principal meridian, being situated in the city of Chicago; that some time during the year 1878, default having been made in the payment of said indebtedness, the said company instituted proceedings for the foreclosure of said trust-deed; that thereupon complainant, through her said husband as her agent, offered said company to release and quitclaim to said company all her lands in said trust-deed described, provided said company would allow her to redeem said two lots hereinbefore described, (one of which said lots was occupied by her as a homestead,) upon payment of whatever sum the said lots, with the improvements thereon, should be valued at by an appraiser to be agreed upon by said company and complainant, and upon such terms of payment as said company were, at or about that time, offering to purchasers of its real estate, to-wit, in 10 equal annual payments or installments, with interest until paid at the rate of 6 per cent. per annum, and to secure the payment of such installments by a mortgage or trust-deed upon said lots; and provided, also, that said company would take the lands in said trust-deed described, belonging to appellant, in full satisfaction of the indebtedness held by it against herself and husband; that said company accepted said offer, and agreed to allow such redemption by complainant upon the terms and for the consideration aforesaid. It is further alleged that a valuation was made of the two lots at $7,500; and then follows this allegation: ‘That thereafter, upon examination of the title to said lots, it appeared that there were certain intervening liens and incumbrances upon the same, created after the execution of said trust-deed, and prior to the agreement hereinbefore set forth for such redemption by your oratrix; and it was thereupon represented to your oratrix by said company, through its attorney, that it would be necessary to foreclose said trust-deed in order to make good title in said company to said lots of land before it could take a mortgage thereon for said installments of redemption money; and it was thereupon agreed by and between said company and your oratrix that the agreement for said redemption should not be executed until after the title had been perfected in said company by said foreclosure proceedings, but should be held in abeyance until after such foreclosure proceedings should be completed, and the title to said lots become vested in said company, discharged of such...
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