Mann v. Jummel

Decision Date18 December 1899
Citation56 N.E. 161,183 Ill. 523
PartiesMANN v. JUMMEL.
CourtIllinois Supreme Court


Appeal from appellate court, First district.

Suit Nicholas J. Mann against Paul Jummel. From a judgment of the appellate court reversing a decree for complainant (80 Ill. App. 288), he appeals. Affirmed.

Ives, Mason & Wyman, for appellant.

William W. Case, for appellee.


Appellant filed his bill in the superior court of Cook county to foreclose a mortgage, in the form of a trust deed, against certain real estate in Chicago. Amelia Thomas, and James, her husband, owners of the property, who executed the trust deed; Theodore H. Schintz, the trustee named in the deed; and appellee, Jummel, claiming under another trust deed on the same property,-were made parties defendant. The Thomases and Jummel filed separate answers, and each filed a cross bill; the former seeking to enjoin the collection of judgments taken by confession on the notes secured by the Mann mortgage, and the latter praying that his trust deed be declared the first lien. On the hearing a decree was rendered granting the relief prayed in the original bill, giving Jummel a second lien, and dismissing the cross bill of the Thomases. From that decree Jummel alone appealed to the appellate court, where the decree below was reversed, and the cause remanded, with directions to enter a decree giving Jummel the first, and Mann a second, lien on the premises. From that judgment this appeal is prosecuted.

The sole contention between the present parties is which shall have the prior lien. They do not disagree as to the material facts, but each insists that, under the law applicable to those facts, his is the prior security. As early as September 30, 1886, Mrs. Thomas and her husband conveyed the property described to Schintz, as trustee, to secure their own principal note for $4,000, payable five years after date, to their order, with 6 1/2 per cent. per annum interest, payable semiannually, for which they made 10 coupon notes, also payable to their order. Both principal and interest notes were payable at the office of Schintz, the trustee. The deed provided: ‘When said notes and all expenses shall be fully paid, said grantee, or his successor in trust, shall reconvey all of said premises remaining unsold to the said grantors, or their heirs or assigns, upon receiving his reasonable charges therefor.’ By their indorsement they transferred all these notes to one John Lobstein. On the maturity of the principal note. September 30, 1891, it was extended, in writing, to September 30, 1896, upon the payment of 10 new interest notes, due semiannually, each for $130. At the date of the extension Schintz took up the principal note, and on October 12th, thereafter, sold it and the new interest notes to appellant, Mann. The trust deed had been filed for record October 5, 1886, and duly recorded, but no change or addition was ever made to that record showing the assignment to Lobstein, Schintz, or Mann, or the extension of the payment of the notes. About a month before the maturity of the $4,000 note as extended, Mrs. Thomas applied to Schintz for a further extension, and was informed by him that the holder wanted the money, but another party would take the loan, upon her and her husband executing new papers, and that he (Schintz) would use the proceeds of the new loan to pay off the old one. Pursuant to that arrangement, she and her husband made new notes, and a trust deed to Schintz, in all respects like the first; indorsing the notes in blank, and delivering them, with the deed, to Schintz. This trust deed was acknowledged September 14, 1896, and recorded the following day. It is shown by their own testimony that, at the time of the delivery of the new notes and deed to Schintz, he told them he would get the old deed released, and they paid him $3.10 for the release and the recording. As already stated, the $4,000 note held by Mann, as extended, fell due September 30, 1896. A few days before that date Schintz told Mann that the Thomases wanted the loan extended for a year, and asked him if he was satisfied with that arrangement; and he said he was, and left, supposing such an extension would be made. A few days later he called again at the office of Schintz, and received from him a check for $130 in payment of the last interest note held by him, but did not receive any extension agreement or new interest notes, and retained the principal note without any change, relying only on the statement that the Thomases wanted the time extended. He gave no further attention to the matter until about April 1, 1897, when he called on Schintz, and again received his check for $130, which would have been six months' interest due if the loan had been extended. On October 6, 1896, Schintz executed and acknowledged a release deed, by which he conveyed, remised, released, and quitclaimed to Amelia and James S. Thomas all right, title, or interest acquired by him under the trust deed dated September, 1886. This release was filed for record on the day of the date, indorsed ‘Box 519,’ which was a box in the recorder's office rented by Schintz, in which papers were placed to be returned to Schintz. It never came to the hands of the Thomases. After recording this release, on October 14, 1896, Schintz sold the new notes and security to appellee, Jummel, for $4,025.25, the amount of the $4,000 principal note and accrued interest. When the first interest of the notes fell due, March 9 1897, Schintz falsely stated it had not come in yet, but the day following sent Jummel his check for the amount. He failed to apply the proceeds of the sale of the second notes and security upon the first, as he had agreed to do, but appropriated the same to his own use. In July, 1897, his financial worthlessness and rascality became known, and the question then arose between these parties who should become his victim. Both had trusted him implicitly in their purchases, and relied upon his statements as to the security bought being a first lien upon the mortgaged property; neither requiring or obtaining an abstract of title, nor an examination of the records. The Thomases were equally confiding, with the result that a double incumbrance exists on their property for a single debt. Their interest, however, in the matter, is not here involved, they having abided by the decree below. The property is inadequate security for both debts described in the trust deeds, and hence it is all-important to these parties as to which shall have priority of lien.

The real issue in the case is whether the release of the first trust deed is binding on appellant, as between himself and appellee. It is first insisted that it is invalid for want of delivery by Schintz to the Thomases. That there was no manual delivery of the instrument is conceded, but there can be no doubt that it was made and recorded in pursuance of an agreement that Schintz should execute and record it. Mrs. Thomas testified: ‘Schintz told me he would get the old trust deed released; that I had nothing to do; if I just paid the money, he would get it released himself. That is what he told me, and I paid the money...

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16 cases
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    • United States
    • North Carolina Supreme Court
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    ...585, 24 Am. Rep. 677; Knife Co. v. Bank, 41 Conn. 421, 19 Am. Rep. 517; Doubleday v. Kress, 50 N.Y. 410, 10 Am. Rep. 502; Mann v. Jummel, 183 Ill. 523, 56 N.E. 161; Lane v. Duchac, 73 Wis. 646, 41 N.W. Insurance Co. v. Eldredge, 102 U.S. 545, 26 L.Ed. 245; 2 Jones on Mortgages, 957. To make......
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    ... ... 283. (3) Where one by his ... negligence misleads others, his equity must yield to the ... better right of an innocent purchaser. Mann v ... Jummel, 183 Ill. 523; Terrell v. Andrew County, ... 44 Mo. 309; St. Louis v. Gas Light Co., 70 Mo. 99; ... Freeman v. Moffitt, 135 Mo. 290; ... ...
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