Magnusson v. Charleson
| Decision Date | 31 May 1881 |
| Citation | 9 Bradw. 194,9 Ill.App. 194 |
| Parties | JONAS P. MAGNUSSONv.JOHN A. CHARLESON ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Bureau county; the Hon. EDWIN S. LELAND, Judge, presiding. Opinion filed November 2, 1881.
Messrs. DAVIS, THOMPSON & MCGAAN, for plaintiff in error; that the time limited for the payment of the sum found due from plaintiff in error was too short, cited Bush v. Connelly, 33 Ill. 447; Moore v. Titman, 33 Ill. 358; Farrell v. Parlier, 50 Ill. 274; Moore v. Bracken, 27 Ill. 23; Claycomb v. Cecil, 27 Ill. 497; Cronan v. Frizell, 42 Ill. 319; Cholmley v. Countess of Oxford, 2 Atk. 267; Bishop of Winchester v. Paine, 11 Ves. 199; Dunham v. Jackson, 6 Wend. 22; Waller v. Harris, 7 Paige, 173; 1 Daniell's Ch. Pr. 1016.
A mortgagee in possession must account for what he receives, less his proper charges: Coote on Mortgages, 345; 1 Hilliard on Mortgages, 450; Hollabush v. Burr, 17 Conn. 556; 4 Kent's Com. 185; 3 Powell on Mortgages, 1154; Robertson v. Campbell, 2 Call. 354; Ballinger v. Moreley, 1 Bibb, 195; Davenport v. Tarleton, 1 Marsh, 244; Ross v. Norwell, 1 Wash. 14; Roberts v. Fleming, 53 Ill. 196; Harper v. Ely, 70 Ill. 581: Mansfield v. Elwood, 84 Ill. 497; Clark v. Finlan, 90 Ill. 249; Moshier v. Norton, 83 Ill. 519.
A mortgagee in possession is a trustee or steward for the mortgagor: 1 Hilliard on Mortgages, 448; French v. Barton, 2 Atk. 120; Moore v. Cable, 1 Johns. Ch. 384; Eaton v. Simons, 14 Pick. 98; Scott v. Brut, 2 T. R. 238.
A mortgagee will not be allowed for improvements beyond necessary repairs: Russell v. Blake, 2 Pick. 505; Sandon v. Hooper, 6 Beav. 246; Bellows v. The Mayor, 10 Paige, 49; Quinn v. Brittain, Hoffman 344; Moore v. Cable, 1 J. C. R. 385; Benedict v. Gilman, 4 Paige, 58.
As to the rule for construction of the stipulation: Parmelee v. Hambleton, 24 Ill. 605; Gale v. Dean, 20 Ill. 320; Crabtree v. Hagenbaugh, 25 Ill. 233; Peckham v. Haddock, 36 Ill. 39.
The court will carry the stipulation into effect: Toupin v. Gargnier, 12 Ill. 79; Chapman v. Shuttuck, 3 Gilm. 49; Henchey v. Chicago, 41 Ill. 136; Coultas v. Green, 43 Ill. 277.
Impeaching testimony must be taken after the witness to be impeached has testified, and must be from among his neighbors: 1 Greenlf's Ev. § 461; Frye v. Bank of Illinois, 11 Ill. 367; Eason v. Chapman, 21 Ill. 33; Crabtree v. Kile, 21 Ill. 180.
Messrs. SHEPARD & MARSTON, for defendants in error; that a resulting trust can only arise in favor of one who claims to have furnished the consideration money, when such money was furnished as a part of the original transaction at the time the purchase was made, cited Perry v. McHenry, 13 Ill. 227; Sheldon v. Harding, 44 Ill. 68; Holmes v. Holmes, 44 Ill. 168; Reeve v. Strawn, 14 Ill. 98.
The presumption is that the recitals in the decree were supported by proper evidence: Durham v. Mulkey, 59 Ill. 91; Corbus v. Teed, 69 Ill. 205; Jones v. Neeley, 72 Ill. 449.
The plaintiff in error filed a bill in the Henry County circuit court to compel an accounting between himself and defendant in error, John A. Charleson. The scope and object of the bill was to have the court declare the title by which the defendant in error, Charleson, held 86 acres of land in Henry county, being the east half of 172 acre tract described in the bill, an equitable mortgage, with a prayer for leave to redeem, and to restrain Charleson from prosecuting a forcible entry and detainer suit to recover the east 86 acre tract, and from selling personal property under two executions in favor of Charleson. It is charged in the bill in substance that plaintiff in error was the owner in fee of the 172 acres described, subject to a trust deed of $3,000, before executed to one Price, as trustee for Howland; that he executed another trust deed to Williams, trustee for Warren M. Baker, on the same land to secure the payment of $664, due in 9 months; that Baker assigned the same to Martin W. Gay. The date of the last deed was Feb. 1, 1871. Default was made in the payment of this last sum, and the land was sold to Gay for debt, interest and costs. That appellant, hearing of the sale, saw Gay, who offered to re-convey to plaintiff in error for the sum of $1,250. That plaintiff applied to defendants in error, Johnson and Charleson, to assist him to pay Gay. They agreed to do so, but refused to take from plaintiff in error a mortgage, because of the prior incumbrance, and it was arranged that instead of plaintiff in error taking a deed from Gay and giving Johnson and Charleson a mortgage, they should take a deed in their names for the benefit of plaintiff in error. That each was to pay an equal amount of the money to Gay, and upon being repaid by plaintiff in error, they were to convey the land to him. That Johnson and Charleson did pay Gay the amount, and took from him a deed. That afterwards Johnson and Charleson refused to carry out the arrangements; that Johnson had conveyed the west 86 acres to one Abrahamson, who claimed the land and refused to convey. The bill sets out the various transactions and dealings between the plaintiff in error and Johnson and Charleson under the said contract, not necessary to fully detail. It is enough to say that the deed from Gay to Johnson and Charleson was made on the 18th day of March, 1872. During the year 1872 the plaintiff held possession of the land and farmed it as tenant of Johnson and Charleson; the rent, however, received by the latter of plaintiff in error, paid for the land, was to go in discharge of the money paid to Gay. The plaintiff in error prays that an account be taken of the amount due, if any, from plaintiff in error to Charleson, in respect to the amount paid Gay, and other sums paid by Charleson for plaintiff; an account of the amounts received by Charleson in respect of the crops, and other particulars, and what, if anything, is due from plaintiff in error on the security of the land, and upon payment by plaintiff in error, Charleson to re-convey the east half to him, and if Charleson is indebted to plaintiff in error, he be ordered to pay.
This bill proceeds upon the theory that the transaction between Johnson and Charleson, and plaintiff in error and Gay, made the sum paid to Gay a loan from Johnson and Charlson, and that the deed was an equitable mortgage. Charleson answered the bill denying that it was a loan, but that the deed taken by them from Gay was a purchase, and they only gave plaintiff in error a privilege to buy the land by paying Gay the amount they gave for the land or their notes, and if he did not do so then the land was to be deeded to them by Gay, and it was to be absolutely theirs, and that plaintiff in error having failed to do as agreed, the land was theirs and the deed was not a mortgage. He also set up the Statute of Frauds as to any verbal agreement to sell the land to plaintiff in error, or to allow him to buy it.
While the case was thus at issue, to wit: on the 31st day of August, A. D. 1874, the plaintiff in error and defendant in error, Charleson entered into and filed in the cause a stipulation in substance as follows: “It is hereby stipulated and agreed by and between the parties to the above entitled cause, that an order of reference be entered upon the records of said court to J. S. Hinman, Master in Chancery of the Henry Circuit Court, to take account as to all matters in difference (except the title to the land in question) between the parties, and ascertain what, if anything, is due from complainant to defendant Charleson, and that on confirmation of the report of said master, a decree be entered requiring complainant to pay the amount found to be due, on a day named by the court, and in default of such payment that complainant's bill be dismissed, and complainant be forever barred from attempting to assert any right, title or interest in and to the land described in said bill, and in question in said cause, and that on the payment on the day named in said decree, said Charleson convey said land to complainant. It is further stipulated and agreed, that the question as to whether the transaction mentioned in said bill amounts to or was a mortgage or not, shall not be submitted to said master, and no evidence on that question be taken by him, and that question shall not be considered by the court in passing upon the report of said master, or in making said decree, and the question of damages on the dissolution of the injunction in said cause, and the question of costs be determined by the court after confirmation of said master's report, and in case it shall appear that Charleson is indebted to said complainant, a decree shall be entered requiring him to pay the amount on a day named by the court in said decree.
“Signed JOHN A. CHARLESON.
JOHN P. MAGNUSSON.”
At the time the above stipulation was made, the old suit of plaintiff in error against Johnson, being a bill to redeem the west half of same tract of land similar to this one, was pending in the Supreme Court. On the 30th January, 1875, the Supreme Court decided the case against plaintiff in error, and he lost the 86 acre tract. The deed from Gay was decided not to be an equitable mortgage. But there was no stipulation like the above, in that case. All the facts and the decision of the court in that case, will be seen by reference to Magnusson v. Johnson et al. 73 Ill. 156.
There was a motion made by appellee, Charleson, to dismiss the writ of error in this case, for the want of jurisdiction of this court, on the ground that a freehold is involved.
This motion was taken by the court to be decided on the hearing. It will be seen by reference to the above agreement, that no freehold is involved. The land is to be conveyed to plaintiff in error at all events. If anything is found due to defendant in error, Charleson, the conveyance is to be made upon payment of the same to him by plaintiff in error, on a day to be...
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