Peckham v. Haddock

• Decision Date: 30 April 1864
• Citation: 36 Ill. 38,1864 WL 3096
• Parties: ALFRED G. PECKHAM et al.v.BENJAMIN F. HADDOCK et al.
• Court: Illinois Supreme Court

36 Ill. 38

1864 WL 3096 (Ill.)

ALFRED G. PECKHAM et al.

v.BENJAMIN F. HADDOCK et al.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Cook County.

The case is sufficiently stated in the opinion.

Barker & Tuley, for plaintiffs in error.

Waite & Towne and Jesse B. Thomas, for defendants in error.

BECKWITH, J.

This is a suit in equity to enforce an equitable mortgage. The bill alleges, that one Hickox made three promissory notes for the sum of six thousand two hundred and fifty dollars each, payable to Haddock or order, with interest, in one, two and three years after date, respectively, and executed a mortgage of certain premises in Chicago to secure the payment of the same. That afterwards the equity of redemption in the premises came to and was vested in Isaac Speer, under whom the other defendants, after the making of the alleged equitable mortgage, derived their title, with notice. Soon after the note payable in one year from date arrived at maturity, Isaac Speer paid the same, and took it up, Haddock receipting its payment on the back thereof.

Speer then applied to Thompson, under whom the other complainants claim, for a loan of money; and by an agreement between Speer, Haddock and Thompson, the receipt of payment upon the note was erased, and it was indorsed to Thompson. An agreement was written on the back of the note, which was signed by Speer and Haddock, as follows, viz:

“Received of Arch'd Thompson, as purchaser and assignee, the full amount of the within note, and interest from date (the interest to 10th May on the other two notes being paid by I. Speer as above), and in consideration of such purchase payment, I hereby sell, assign and transfer the within note to said Thompson, with all interest accrued or to accrue, including the incident security, by trust deed, or mortgage, of Hickox, the maker. But it is understood that said Thompson is not to proceed thereon until I shall have had time and opportunity to collect my said two next notes included in the same security by deed or mortgage. It being understood that I. Speer, assignee of Hickox (who also undersigns), is to have three years from date to pay this note, by his allowing or paying ten per cent. interest on the advance purchase money (amount on 10th May last, $6,625; one and a half months more to 25th June, is $46.87, $6,671.87), so advanced in purchase of this note by said Thompson. Chicago, June 24, 1856.

BENJ'N F. HADDOCK.

And said Speer hereby agrees to pay the within note, and interest accrued, besides ten per cent. hereafter as above. Chicago, June 24, 1856.

ISAAC SPEER.”

It was insisted in argument that the payment of the note discharged the mortgage; and that it could not be revived without the assent of Hickox, the mortgagor, nor by an instrument having none of the formalities necessary to create a legal mortgage.

An instrument under seal is required to create a mortgage conveying the legal title; and after such a mortgage is in contemplation of law discharged, it would seem to be necessary to observe the same formalities in reviving it, as were requisite to give it validity in the first instance; but although an instrument may not operate as a revival of a mortgage at law, it does not follow that it should not operate as an agreement to charge the lands as an equitable mortgage. While we cannot give effect to an instrument so as to do violence to the rules of language, or to the rules of law, we are to give to it such a construction as will bring it as near to the actual meaning of the parties as the words which they saw fit to employ, and the rules of law, will permit.

It not unfrequently happens that instruments cannot have the effect intended by the parties, and effect is given to them in another way, consistently with such intention.

In Gibson v. Minet, 1 H. Bl., 569, Lord Chief Baron EYRE said: “a deed of feoffment upon consideration, without livery, may enure as a covenant to stand seized to the use of the intended feoffee. A feoffment without livery operates nothing as a feoffment--is in truth no feoffment, but is a deed, which may operate as a covenant to stand seized to uses. The seizin remains in the feoffor, because the deed is insufficient to pass it; but the land is bound by the use;” and the reason the learned Baron gives for this conclusion is, that “it is the effect of the feoffor's own agreement, plainly expressed upon the face of his deed--it is a construction put upon the words of his deed, which his words will bear.”

In Shep. Touch., vol. 2, p. 82 (Preston's edition), it is said, “a deed that is intended and made to one purpose may enure to another; for, if it will not take effect in the way it was intended, it may take effect another way, provided it may have that effect, consistently with the intention of the parties.” In Goodtitle ex dem. Edwards v. Bailey, Cowp., 597, Lord MANSFIELD said: “the rules laid down in respect to the construction of deeds are founded in law, reason and common sense; that they shall operate according to the intention of the parties, if by law they may; and if they cannot operate in one form, they shall operate in that which by law shall effectuate the intention.”

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