Lindauer v. Cummings

• Decision Date: 30 September 1870
• Citation: 57 Ill. 195,1870 WL 6606
• Parties: JOHN JACOB LINDAUERv.EPHRAIM H. CUMMINGS, Executor, and others, heirs of FREDERICK N. EHRENFELS.
• Court: Illinois Supreme Court

57 Ill. 195

1870 WL 6606 (Ill.)

JOHN JACOB LINDAUER

v.EPHRAIM H. CUMMINGS, Executor, and others, heirs of FREDERICK N. EHRENFELS.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion states the case. Messrs. MILLER, VAN ARMAN & LEWIS, for the appellant.

Mr. SIDNEY SMITH, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This is an appeal from the decree of the Superior Court of Chicago, dismissing the bill filed in that court by the appellant, John Jacob Lindauer, against the appellees, to redeem lot 9 in block 98, in school section addition to Chicago, from a mortgage alleged to have been executed on the 9th day of July, A. D. 1860, by Lindauer, the then owner of the property, to Frederick N. Ehrenfels.

On the 9th day of July, 1860, Lindauer executed to Ehrenfels a warranty deed of said property, with full covenants.

On the 28th day of December, A. D. 1865, Ehrenfels died, leaving a will in which he named Ephraim H. Cummings and Sophia Ehrenfels executor and executrix. Sophia renounced, leaving Mr. Cummings the sole executor. On the 15th day of May, 1866, Lindauer filed his original bill, and on the 22d day of November, of the same year, filed his amended bill.

The amended bill alleges that Lindauer, on the 13th of October, 1856, being indebted to Ehrenfels in the sum of $882, executed to Ehrenfels a promissory note, with a trust deed of this lot to O. R. W. Lull, trustee, to secure the payment of that sum, with interest at ten per cent, in one year from that time; that on the 1st of April, 1859, being indebted to Ehrenfels in the further sum of $1,495, he executed a promissory note to Ehrenfels, together with a trust deed to Samuel Straus, as trustee, to secure the payment thereof, with interest at ten per cent per annum, in one year from the said first day of April; that on the 9th of July, 1860, Lindauer and Ehrenfels accounted together, when Lindauer was found to be indebted to Ehrenfels in the sum of $2,800; that he was unable to pay the amount, and under the necessity of borrowing $200; that Ehrenfels lent him this additional sum, thereby increasing his indebtedness to Ehrenfels to the sum of $3,000, and that to secure the repayment of said sum, he conveyed said lot to Ehrenfels by a deed in the form of an absolute conveyance thereof, but upon the understanding and under an agreement with Ehrenfels that Ehrenfels should take charge of and rent said lot, and apply the rents which should accrue therefrom towards the payment of said sum, and that he should continue to rent the premises and thus apply the rents until he should deem it for the interest of Lindauer to sell the premises or until the indebtedness should be paid out of the rents, and in the event of his selling it he should apply the proceeds of such sale to the payment of said indebtedness, with interest, and pay over the balance to complainant, and in case the premises should not be sold, that he should reconvey the lot to complainant upon the payment of said indebtedness; that prior to this time the property had been improved by the erection of buildings thereon; that Ehrenfels accordingly took possession of said premises and kept them under lease and continued to receive the rents which accrued therefrom, to the time of his death, which took place December 28th, 1865; that the rents thus received by him, and by his executor since his decease have been more than sufficient to pay off said mortgage debt. Complainant asks for an account, offers to pay any deficiency, and prays to be allowed to redeem.

The defendant Cummings, in his answer, admits the execution of the notes of October 13th, 1856, and April 1st, 1859, and the trust deeds to Lull and Straus to secure payment of the same, and the execution of the deed of July 9th 1860, from Lindauer to Ehrenfels, but avers that the same was intended to be, and was, an absolute deed and not a mortgage, or subject to any parol trust; admits that said two notes remained unpaid up to the 9th day of July, 1860; denies that any principal or interest was paid thereon, or that usurious interest was claimed or allowed; avers that said notes were surrendered to Lindauer as part of the consideration for his said deed, and that whatever money was paid was not as a loan, but also as part of the consideration for said deed; that at the same date of the deed Lull and Straus released the trust deeds; that afterwards, and on the 21st of June, 1865, Ehrenfels conveyed to Lindauer land at Rock Island Junction, in Cook county, then worth $1,000, but upon no other or further consideration except the deed of July 9th, 1860, from Lindauer to him, so that complainant actually received in indebtedness surrendered and cancelled, additional cash, and the land at the Junction, $4,000, as the consideration for his conveyance to Ehrenfels of said lot 9 in block 98, school section addition, which was executed in pursuance of an absolute and bona fide sale to Ehrenfels upon a full and fair consideration.

Sophia, Philip and Johannes Ehrenfels filed a similar answer, denying that the deed of July 9th, 1860, was intended as a security by way of mortgage; avers that it was intended for and was an absolute conveyance in pursuance of a bona fide sale, and...