Lloyd v. Lee

• Decision Date: 30 September 1867
• Citation: 45 Ill. 277,1867 WL 5263
• Parties: FREDERICK LLOYDv.GEORGE M. LEE.
• Court: Illinois Supreme Court

45 Ill. 277

1867 WL 5263 (Ill.)

FREDERICK LLOYD

v.GEORGE M. LEE.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Circuit Court of Marshall county; the Hon. S. L. RICHMOND, Judge, presiding.

The facts appear in the opinion.

Messrs. WEAD & JACK, for the appellant.

Messrs. FORT & BOAL, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity, commenced by George M. Lee, in the Marshall Circuit Court, against Andrew V. Shurts, Peter W. Mellick, David W. Danley, James Wilson and Theodore Lloyd, to compel the specific performance of an agreement to convey fifty acres of land. It appears, that in June, 1855, one Jared Lee sold the S. E. 19, 13 N. 9 E. to Shurts, and he, to secure the payment of the purchase money, gave his note for $1,649.87, with ten per cent interest, and executed a mortgage on the land. Afterward, appellee, the son of Jared Lee, purchased of Shurts fifty acres off of the west side of the quarter, for the sum of $460, and paid a portion of the money on the purchase, and executed his note for $287.34 for the balance, due the 1st of April, 1856, and this money, when paid, was to be credited on Shurts' note to Jared Lee. But George M. Lee was to receive no deed until his note should be fully paid.

Some time in January, 1856, Jared Lee died and Samuel B. McLaughlin became administrator of his estate. He afterward brought suit on the note against Shurts, and recovered a judgment for the amount of principal and interest. In January, 1858, the administrator filed a bill against Shurts, George M. Lee and others to foreclose the mortgage. The bill alleged, that George M. Lee claimed to have some interest or title to the mortgaged premises. He filed his answer, not under oath, in which he set up his purchase of Shurts, with his father's knowledge and consent, and that he had fully paid the purchase money to his father, and claimed that he was entitled to a deed. That upon the payment to Jared Lee he acknowledged satisfaction of the mortgage to the extent that it affected the portion purchased by him. He prayed an injunction to prevent the administrator from proceeding further to subject his portion of the quarter to sale for the satisfaction of the mortgage. On the hearing, he introduced no evidence in support of his answer, and a decree was rendered for the amount of the judgment, with interest, and the land was ordered to be sold to pay the mortgage debt.

The land was afterward sold by the master under the decree, and Lloyd, who had previously purchased the equity of redemption from Shurts, and received a deed, became the purchaser of all but the fifty acres sold to G. M. Lee. This decree and sale were set up and relied upon in this case as a bar to the relief sought by appellee. But the court below refused to allow the defense, and rendered a decree according to the prayer of the bill, from which this appeal is prosecuted.

It is now urged that the decree of foreclosure and sale settles and concludes appellee...