Lehndorf v. Cope

• Decision Date: 28 September 1887
• Citation: 122 Ill. 317,13 N.E. 505
• Parties: LEHNDORF and others v. COPE.
• Court: Illinois Supreme Court

122 Ill. 317

13 N.E. 505

LEHNDORF and others

v.COPE.

Supreme Court of Illinois.

September 28, 1887.

Error to circuit court, Marion county; AMOS WATTS, Judge.

James W. Humphrey, being the owner of the lands in controversy, bargained with Maria Anna Lehndorf for the sale thereof for $5,100, and, joined by his wife, on the third day of August, 1883, by statutory form of warranty deed, in consideration of that sum, did ‘convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf,’ said lands. Two thousand dollars of the purchase money was paid in hand, and two notes of Maria Anna Lehndorf were given for $1,550 each, payable with interest, to said Humphrey in 12 and 24 months, respectively. At the same time, and as part of the same transaction, a mortgage in statutory form was duly executed and delivered by said Maria Anna Lehndorf and Henry Lehndorf, her husband, upon the same lands, to secure the said two notes; all being done simultaneously, and as parts of the same transaction. James W. Humphrey afterwards sold, indorsed, and delivered the said notes to Allen Cope, defendant in error. On the twenty-sixty day of December, 1885, said Maria A., joining with her two sons, Paul and Albert Lehndorf, executed and delivered a deed conveying to Elizabeth Wirtz said lands. The first deed and mortgage mentioned were duly recorded August 8, 1883; that latter, December 26, 1885. The notes remaining unpaid after due, Cope, assignee thereof, filed this bill to foreclose the said mortgage, making Maria L. Lehndorf, Henry Lehndorf, her husband, Paul, Albert, and William Lehndorf, (children of Maria and Henry,) and Elizabeth Wirtz, defendants.

The bill, after alleging the sale of the land by Humphrey to Mrs. Lehndorf, and making the deed, mortgage, and notes exhibits, sets up the foregoing facts, and then proceeds: ‘At the request of said Maria A. Lehndorf, the said James W. Humphrey and his wife, Sarah F. C. Humphrey, conveyed and warranted said lands, and real estate to her by the name and style of Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf, by a deed of conveyance bearing date the said third day of August, 1883, duly recorded the eighth of August, 1883, and hereto attached, marked ‘Exhibit A.’ Complainant submits that said Maria Anna Lehndorf can have no heirs while living, and that the words ‘and her heirs by her present husband, Henry Lehndorf,’ are surplusage in said deed, and that said Paul, Albert, and William Lehndorf take no interest, either in law or equity, in said lands and real estate, by virtue of the same being incorporated, as aforesaid, in said deed of conveyance. And complainant further shows that said Paul, Albert, and William Lehndorf paid nothing of the purchase money of said lands and real estate to said James W. Humphrey, and of any interest of said lands by virtue of said words, or otherwise. Such interest would be subject to the payment of the purchase money of said lands and real estate, and subject to the rights and equities of your complainant to have said lands and real estate subjected to the payment of said purchase money, so secured by said notes and mortgage as aforesaid. Complainant further shows that on, to-wit, the twenty-sixth day of December, 1885, Maria Anna Lehndorf, Paul and Albert Lehndorf, executed, acknowledged, and delivered to one Elizabeth Wirtz, of St. Louis, Mo., a warranty deed of conveyance, purporting to convey and warrant said lands to said Elizabeth Wirtz, which said deed was duly recorded in said Marion county, in Record Book 41, page 55. Complainant charges, on information and belief, that said conveyance, so made by Maria Anna, Paul, and Albert Lehndorf to said Elizabeth Wirtz, was without any consideration; that said Elizabeth Wirtz is the mother of said Maria Anna Lehndorf, and that she paid nothing for said lands and real estate to said Maria Anna, nor to said Paul or Albert Lehndorf, but said conveyance was made to embarrass in the collection of said notes. Complainant submits that, if said conveyance of said lands and real estate to said Elizabeth Wirtz was in good faith, the rights of said Elizabeth Wirtz, acquired by such conveyance, would be subject to the rights and equities of complainant in and to said lands and real estate.' The bill prays for appointment of guardian ad litem for Paul, Albert, and William Lehndorf, who are alleged to be minors; that an account be taken of the amount due complainant on the mortgage; that, in default of payment, sufficient of the land be sold to pay the amount found due; that the rights and equities of the defendants be decreed subject to the equities of complainant; and that they be barred, etc., of equity of redemption.

The defendant Maria A. Lehndorf answered, admitting the making of the deeds and mortgage, and that the notes mentioned and secured by the mortgage were part of the purchase money; admits that it was agreed between her and said Humphrey that in making the conveyance of said land the deed should be made to Maria Anna Lehndorf, and her heirs by her present husband; that said deed was so made for the purposes in the deed expressed, and with the intent to so convey the land, and not otherwise; denies that she agreed to purchase, and take a conveyance to herself, but that the deed was intended to convey said lands to her and her heirs by her husband, Henry Lehndorf, and not otherwise; avers that the deed conveyed an estate for life to her in said lands, and the fee therein to her heirs of said Henry, and that Humphrey well knew the same before, and at the time of, the execution of said deed; admits making notes as alleged, and mortgage to secure the same, but denies that it was upon any interest in the land not owned by her; that said mortgage was intended to be only of her life-estate, and Humphrey well knew the same, and accepted the same with such knowledge and intent; avers that, if complainant is owner of the notes, he had them with notice that Maria Anna had purchased and taken by said deed only a life-estate in said lands at the time and before he purchased said notes of said Humphrey; that Humphrey had taken and accepted a mortgage on her life-estate for the security of said notes with full knowledge, and his assignee took no other or greater interest or right than he possessed; denies the right of complainant to other equitable relief; avers that Humphrey waived right to a lien in equity for the purchase money, by taking security by mortgage of life-estate, and that upon the assignment of the notes he received pay and satisfaction of the purchase money, and thereby any right of equitable relief for the purchase money he might have had was lost; avers that her children by said Henry became and were owners in fee of said lands, as tenants in comman, Subject to the life-estate in herself, and subject, also, to be opened to let in other child or children that may be born to the body of said Maria by her present husband, Henry Lehndorf, etc.

The defendants Paul, Albert, and William Lehndorf, by their guardian ad litem, demurred to the bill, which was overruled by the court, and defendant Wirtz was defaulted. Decree was rendered foreclosing the mortgage, finding the interest of all of the defendants subject thereto, and decreeing accordingly.

The only evidence introduced, other than the deeds, notes, and mortgage mentioned, was that of the scrivener who drew the deed and mortgage of August 3, 1883, who identified the notes as those given at the time for the purchase money of the land; and it was shown, also, that Paul, Albert, and William Lehndorf were the children of said Maria, by her husband Henry Lehndorf; that all were minors. Two of them were born prior to the third day of August, 1883, and one since.

The defendants below prosecute this writ of error.J. B. Kagy and Casey & Dwight, for plaintiffs in error.

Henry C. Goodnow, for defendant in error.

SHOPE, J.

It is contended by appellee that by the deed of August 3, 1883, from Humphrey and wife to ‘Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf,’ Mrs. Lehndorf took a fee-simple estate in the lands conveyed; while appellants contend that she thereby took a life-estate only, with remainder in fee to her children by said Henry Lehndorf. The deed, being statutory in form, contains no habendum limiting or defining the estate taken by Mrs. Lehndorf; and, although the deed must be held equivalent to one containing full covenants, (Elder v. Derby, 98 Ill. 228,) it is manifest that the estate granted would not be enlarged or restricted thereby. Such covenants are an assurance of the title granted to the grantees, whomsoever they may be. If Mrs. Lehndorf took the fee, the covenants assure that estate to her; if she takes an estate in tail, the covenantor warrants to her a life-estate, and the remainder in fee to whoever would take upon determination of her estate. Therefore, as said by counsel for appellee, the determination of the question depends upon a construction of the granting clause of the deed, which is that the grantors, in consideration, etc., ‘convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf, of,’ etc., the lands in controversy.

The legitimate purpose of all construction of a contract or other instrument in writing is to ascertain the intention of the party or parties in making the same; and, when this is determined, effect will be given thereto, unless to do so would violate some established rule of property. The nature and quantity of the interest granted by a deed are always to be ascertained from the instrument itself, and are to be determined by the court as a matter of law. The intention of the parties will control the court in construction of the deed; but it is the intention apparent and manifest in the instrument, construing each clause, word, and term involved in the construction...