Lake v. Freer

• Decision Date: 31 October 1882
• Citation: 11 Bradw. 576,11 Ill.App. 576
• Parties: MARY A. LAKEv.L. C. PAINE FREER.
• Court: United States Appellate Court of Illinois

11 Ill.App. 576

11 Bradw. 576

MARY A. LAKE

v.L. C. PAINE FREER.

Appellate Court of Illinois, First District.

October Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding. Opinion filed November 29, 1882.

This was a bill in equity brought by appellant, Mary A. Lake against the appellee, L. C. Paine Freer, for the enforcement against the latter of a special trust declared by him in writing, in reference to certain real estate situate in the city of Chicago, and particularly described in said bill. The material facts set out in the bill and shown by the evidence, are, that May 27, 1878, the appellant was the owner of the equity of redemption in said premises, which were subject to an incumbrance created by a former owner of the name of Gilbert, by means of promissory notes secured by a trust deed of said premises, on which at the time aforesaid there was due and unpaid about the sum of $3,300; that appellant had become the owner of said premises subject to said incumbrance, and which she had assumed to pay; that at the time aforesaid, the appellee was the owner and holder of said notes which were about maturing; that appellant being unable to sell the premises, on account of the then hard times, and not having the ready means with which to pay off said incumbrance at its maturity, and the appellee having given appellant notice that he should insist upon prompt payment of said indebtedness at maturity, did, in the fore part of said 27th of May, have some negotiations through her husband, D. J. Lake, with appellee, respecting said matters, wherein the parties partially agreed orally upon terms of compromise, or adjustment of the same, though not fully; that afterward, and on the same day, appellee having prepared a deed of the premises to be executed to him by appellant and her husband, sent the same to the latter, inclosed in a paper signed by appellee, which is as follows:

“CHICAGO, May 27, 1878.

Mr. and Mrs. D. J. LAKE:

I have drafted a deed of the Gilbert property in conformity with a conversation had to-day with Mr. Lake, which you will find herewith inclosed. I am sorry to be troubled with the property, or to have you lose anything by it. There are two taxes against it, the taxes of 1878, and an old city tax. These taxes I will pay and all other taxes, and I repeat what I said before to Mr. Lake, I shall consider myself honorably bound, if anything can be made out of the property during the next three years, more than the interest, taxes, insurance and repairs, to give Mrs. Lake the benefit of it. This has been my uniform course in similar cases. In the meantime I shall expect the rent from the 1st of June, and your title papers and abstracts of title. Please execute the deed and send to me.

1st. Fill the christian name of Mrs. Lake.

2d. Your place of residence and acknowledge.

Yours truly,

L. C. P. FREER.

P. S.--I could collect my debt without difficulty of the makers and guarantors of the notes, but I do not wish to give any one more than the inevitable troubles these hard times.

L. C. P. F.”

It appears that this proposition was accepted by appellant, the deed was executed and delivered, together with the title papers and abstract of title belonging to appellant, and the appellee put in possession of the premises, in conformity with the terms of said proposition so made by appellee. It further appears that appellee in about a month after obtaining such conveyance, etc., from appellant, as aforesaid, sold and conveyed the premises without any notice to appellant or her husband, to one Gage, who, so far as the evidence shows, was a bona fide purchaser, without notice of appellant's right in said premises; it further appears that appellant introduced evidence which tended to, and did show, that during the three years next succeeding the said transactions of the 27th of May, 1878, the premises in question appreciated in value and that with proper management for said period, they, with the rents accruing therefrom, could have been made to produce considerably more than sufficient to pay said incumbrance and the interest thereon, together with the taxes, and reasonable expense of insurance and repairs.

Upon hearing upon pleadings and proofs, the court below found that the equities were with the defendant, and decreed that complainant's bill be dismissed with costs, from which decree she prosecutes this appeal.

Messrs. H. T. & L. HELM, for appellant; that a deed absolute on its face may be shown to be intended only as a security, and where an express agreement is shown that such a deed is intended to create a charge upon the estate, a trust is created, cited 4 Kent's Com. 142; 2 Story's Eq. Jur. 1018; 2 Fonblanque's Eq. 263; Washburn on Real Property, 42; Delahay v. McConnell, 4 Scam. 156; Tillson v. Moulton, 23 Ill. 648; De Wolf v. Strader, 26 Ill. 276; Peckham v. Haddock, 36 Ill. 38; Price v. Karnes, 59 Ill. 276; Ruckman v. Alwood, 71 Ill. 155; Clark v. Fenlon, 90 Ill. 582; Kellerman v. Brown, 4 Mass. 144; Boyd v. McLean, 1 Johns. Ch. 582; Hughes v. Edwards, 9 Wheat. 489; United States v. Sturges, 1 Paine, 525; Rev. Stat. Chap. 95, § 12.

The character of a transaction may be shown by parol evidence: Ferguson v. Sutphen, 3 Gilm. 547; Miller v. Thomas, 14 Ill. 431; Ruckman v. Alwood, 71 Ill. 155; Nat. Life Ins. Co. v. Webster, 83 Ill. 470; Wright v. Bates, 13 Vt. 349; Patchin v. Pierce, 12 Wend. 61.

The fact that the grantor was financially embarrassed and in danger of losing the property, is a circumstance to be considered in this case: Miller v. Thomas, 14 Ill. 431; Preschbaker v. Feaman, 32 Ill. 475; Snyder v. Griswold, 37 Ill. 216; Ennor v. Thompson, 46 Ill. 214; Davis v. Hopkins, 15 Ill. 519.

Generally as to the right to recover: 2 Washburn on Real Property, 56; Palmer v. Gurnsey, 7 Wend. 248; Gillis v. Martin, 2 Dev. Eq. 470;

The complainant has the right to redeem: Price v. Karnes, 59 Ill. 276; Ennor v. Thompson, 46 Ill. 214; Reigard v. McNeil, 38 Ill. 401; Dwen v. Blake, 44 Ill. 135; Willetts v. Burgess, 34 Ill. 494; Tennery v. Nicholson, 87 Ill. 464; Washburn on Real Property, *496.

Mr. FRANK J. CRAWFORD, for appellee; that a deed absolute on its face will not be regarded as a mortgage, unless it clearly appears to have been so intended at the time of its execution, cited Sharp v. Smitherman, 85 Ill. 153; Clark v. Finlon, 90 Ill. 245; Robinson v. Cropsey, 2 Ed. Ch. 143; Galt v. Jackson, 9 Ga. 151.

The deed in question was not given in security for a debt but an extinguishment of a debt, and notwithstanding the written agreement the conveyance is not a mortgage but a deed: Baker v. Thrasher, 4 Denio, 495; Macaulay v. Porter 71 N. Y. 179; Jones on Mortgages, § 267; Montgomery v. Spect, 55 Cal. 352.

The question of merger of the debt in the superior title by deed is one of intention: Campbell v. Carter, 14 Ill. 290; James v. Johnson, 5 Johns. Ch. 417.

MCALLISTER, J.

We think the evidence shows that the sole consideration for the...