Lane v. Allen

• Decision Date: 12 May 1896
• Citation: 162 Ill. 426,44 N.E. 831
• Parties: LANE v. ALLEN et al.
• Court: Illinois Supreme Court

162 Ill. 426

44 N.E. 831

LANE

v.ALLEN et al.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Bill by Jesse M. Allen and others against James R. Lane to foreclose a deed of trust. The decree rendered was affirmed by the appellate court (60 Ill. App. 457), and defendant appeals. Reversed.

Arnd, Evans & Arnd, for appellant.

Frake & Peake, for appellees.

CARTWRIGHT, J.

Appellees filed their bill June 20, 1894, to foreclose a trust deed. Appellant was made a party defendant, and filed his cross bill to compel a release of a portion of the premises under a stipulation in the trust deed for partial releases on payment of $500 or more, at any time or times, on the indebtedness secured thereby. Appellees answered the cross bill, admitting that there was a provision in the trust deed as stated in said cross bill, but denying that it applied to payments made before a subdivision of the premises, and claiming that the right to partial releases was fixed by a different agreement, under which lots were to be released when sold to owners who should put permanent improvements on the same. The issues on the cross bill were referred to a master in chancery, who took the proofs of the respective parties, and reported the same to the court, with his conclusion that appellant was entitled to a release of a share of the premises as prayed, based upon the payments made by him. Exceptions to the master's report were sustained by the court, and the cross bill was dismissed for want of equity. The appellate court has affirmed the decree of dismissal.

The material facts are as follows: On June 4, 1891, Lane entered into a written contract with Jesse M. Allen and Evelyn A. Frake for the purchase from them of the premises covered by the trust deed, by which they agreed to convey the same to him, or to whomsoever he might designate, upon compliance with the terms of the contract. The purchase price was $13,140, of which $250 was paid when the contract was made, $3,035 became due August 1, 1891, and for the balance, $9,855, Lane was to give promissory notes, three of which were to be payable to Allen and three to Evelyn A. Frake, and they were to be secured by the trust deed to James Frake. In accordance with the provisions of the contract, Lane designated Herbert L. Bailey as the person to receive the deed, and the notes and trust deed were made in Bailey's name. It was stipulated in the contract that the trust deed should contain the following provision, which was accordingly inserted therein: ‘It is provided and agreed herein, on the part of the parties in interest herein, that said above described premises may be subdivided, and that on payment of $500 or more, at any time or times, on the indebtedness secured hereby, a part or parts of said premises shall be released therefrom; the amount to be so released to be determined as follows, to wit.’ Then followed the manner of determining the amount, at certain rates per front foot, therein stated, providing that there should not be less than 2,400 feet of frontage; but otherwise the amount to be released on a payment was to be determined by the trustee, James Frake. Bailey conveyed the premises, at the request of Lane, who was the real party in interest, to Alfred B. Church. A subdivision of the premises was made, with a frontage of more than 2,400 feet; block 1 having 49 lots, and block 2 containing 52 lots. Church conveyed to Lane, and Lane to A. J. Vesey, who secured part of the purchase money by a junior incumbrance on the lots sought to be released by the cross bill. Vesey conveyed to Andrew A. Brock, subject to the incumbrances; and, when the cross bill was filed, Lane held the junior incumbrance, and sought a release of lots 1...