Ogden v. Stevens

• Citation: 241 Ill. 556,89 N.E. 741
• Parties: OGDEN v. STEVENS.
• Decision Date: 26 October 1909
• Court: Supreme Court of Illinois

241 Ill. 556

89 N.E. 741

OGDEN

v.STEVENS.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Circuit Court, Will County; Frank L. Hooper, Judge.

Bill by May S. Ogden against Albert P. Stevens. Decree for complainant, and defendant appeals. Reversed in part and remanded.

Coll McNaughton and John W. Downey, for appellant.

Eddy, Haley & Wetten (P. C. Haley, of counsel), for appellee.

VICKERS, J.

This was a bill filed by May S. Ogden in the circuit court of Will county against Albert P. Stevens and Jerome P. Stevens to obtain a decree permitting her to redeem certain premises from a sale made under a decree entered in said court on the 25th day of September, 1897. Albert P. Stevens answered the bill, denying the principal allegations upon which the complainant predicated her right to relief. Jerome P. Stevens filed an answer disclaiming all interest in the premises, and his connection with the litigation was terminated. Upon a hearing of the evidence in open court a decree was entered in accordance with the prayer of the bill, permitting the complainant to redeem lots 4, 5, and 8, in block 1, of school section addition to the city of Joliet, as prayed for in the bill, upon the payment of the balance which might be found due the defendant upon an accounting to be had before the master in chancery in accordance with the specific directions of the decree, and the cause was referred to the master in chancery to state the account between the complainant and defendant and to report his conclusions of law and fact in relation to the matters of accounting so referred to him. The defendant has appealed from this decree, and urges a reversal thereof for the reasons hereinafter stated.

The facts disclosed by the evidence show that prior to September 6, 1884, the premises in question were owned by Marshall B. Ogden, who died testate on said date, and by his last will the premises involved were devised to his son, Edwy C. Ogden, husband of appellee. At the time of the death of Marshall B. Ogden there was a mortgage on said premises in favor of William C. Ogden for $1,697.50. On July 15, 1892, Edwy C. Ogden executed a trust deed to William Grinton to secure a loan of $6,000 obtained from Henry K. Stevens, father of the appellant, who thereafter made a gift of said note and trust deed to appellant. The $6,000 note was payable to Edwy C. Ogden five years after date, and was by him indorsed. The note drew interest at the rate of 7 per cent. per annum. On August 9, 1893, Edwy C. Ogden conveyed his equity in said property to M. D. Ogden. On August 17, 1896, the holder of the note elected to declare the principal sum due because of a default in the payment of interest and filed a bill in the circuit court of Will county to foreclose the same. In December, 1896, while the foreclosure proceeding was pending, Edwy C. Ogden, intermarried with the appellee, May S. Ogden, and on June 15, 1897, M. D. Ogden, for the consideration of $2,300, conveyed his equity in said lots to appellee, May S. Ogden. The foreclosure proceeding resulted in a decree on September 25, 1897, for the sum of $7,621.79. The decree not having been satisfied, the premises were sold on the 25th of October, 1897, to appellant for $7,795.99, in full satisfaction of the decree, and the master in chancery executed to appellant a certificate of purchase entitling him to a deed on January 25, 1899, unless redemption should be made. William C. Ogden, who claimed to be the owner of the note for $1,697.50, secured by a mortgage upon a part of these premises, was not made a party to the foreclosure of the trust deed. On January 5, 1897, and during the pendency of the foreclosure proceeding, William C. Ogden filed an original bill in the Will county circuit court to foreclose his mortgage. Appellant and Edwy C. Ogden and others were made parties defendant to the bill filed by William C. Ogden. Appellee was not made a party to this bill. The William C. Ogden bill was dismissed by the circuit court of Will county for want of equity on April 22, 1898, which was about six months after the sale under the foreclosure of the trust deed. William C. Ogden appealed from the decree dismissing his bill to the Appellate Court, where the decree was affirmed December 14, 1898, before the time for redemption had expired from the sale under the decree of foreclosure of the trust deed. William C. Ogden prosecuted a further appeal to this court, and the judgment of the Appellate Court was affirmed by the Supreme Court on June 17, 1899. A petition for rehearing was filed by William C. Ogden and was not finally disposed of until October 5, 1899, which was several months after the expiration of the time allowed by the law for a redemption from the trust deed foreclosure sale. Both appellant and appellee were interested in defeating the foreclosure proceeding instituted by William C. Ogden. The evidence shows that appellee employed and paid counsel to defend against that foreclosure proceeding and that the defense was successfully interposed without any cost to appellant. The foregoing facts are undisputed. The controversy between the parties relates entirely to the facts now to be stated.

Appellee contends that she intended to redeem from the sale under the trust deed, that she had frequent conversations with appellant in regard to the redemption of the premises, and that the appellant assured her that all he wanted was the money that he had invested and the interest thereon, and that appellant frequently promised to accept his money and permit a redemption, both before and after the master's deed was issued to appellant. Appellant denies ever having made any such promises to appellee. On February 1, 1899, Morrill Sprague, an attorney at the Will county bar, who had represented the defense in the William C. Ogden litigation, at the request of appellee's husband and appellant, made an itemized statement of the amount necessary to redeem from the trust deed foreclosure, from which it appears that at that time there was due, for principal, interest, insurance, taxes, and costs, $8,974.18. At that time it was estimated by Mr. Sprague that it would probably be nine months before the William C. Ogden litigation would be finally disposed of. For the purpose of preserving appellee's right to redeem after the termination of the William C. Ogden litigation, on the said 1st day of February, 1899, two instruments in writing were prepared by Mr. Sprague and executed between appellant and appellee. One of these instruments on its face purports to be a contract of sale, by which the appellant agreed to sell the premises to appellee for the sum of $8,974.18, provided said sum of money, with 6 per cent. interest thereon, was paid to him at any time within nine months from that date. The contract also provided that appellee should pay appellant as rentals on the premises $100 per month, in advance, for a term of nine months, with the understanding that, if appellee paid the $8,974.18 within the time limit, she should have credit for the amount paid as rentals. The other instrument executed between the parties was an ordinary lease, by which appellant leased the premises to appellee for a rental of $100 per month. The evidence shows that appellee continued in the possession of the premises and paid the $100 per month for eight consecutive months, and that before the ninth payment came due appellant went to Mt. Clemens, Mich., for treatment for rheumatism, and that he was not at home to receive the $100 or the balance of the money under the contract, although appellee, her husband, and her attorney made repeated efforts to make such payment and close up the transaction. On one occasion after appellant returned home appellee was denied admittance to his home on the ground that appellant was too ill to be seen about business affairs. Finally, in November, after the nine months had expired, appellant had an interview with Mr. Sprague and the appellee's husband, and he again assured them that he was willing to carry out the contract and receive his money, although the time under the written agreement had expired, and on this occasion appellant received a certified check for the ninth $100 payment.

The evidence shows that the equity in these premises was worth from $10,000 to $20,000, and that appellee had made a tentative arrangement with Mr. O'Connor, a broker, to furnish her the necessary money to make a redemption of the property. Appellee's husband had also obtained a promise from another loan agent who was willing to furnish the money for the redemption and take a mortgage upon the property. Appellee informed appellant that she had such arrangements made for the money, and was ready and willing at any time to pay him all that was due him, but appellant told her that there was no hurry about the redemption, that he did not need the money, and that she might just as well pay him interest as to pay it to some other person. The weight of the evidence shows that on all of these occasions appellant recognized his obligation to take the money and release the property. During the time that appellee was occupying the premises, and while relying on appellant's promise to accept his money, appellee spent about $2,500 in taxes, expenses, and improvements upon the...