Phelps v. Harding

• Decision Date: 30 September 1877
• Parties: J. M. PHELPS et al.v.GEORGE F. HARDING.
• Court: Illinois Supreme Court

87 Ill. 442

1877 WL 9876 (Ill.)

J. M. PHELPS et al.

v.GEORGE F. HARDING.

Supreme Court of Illinois.

September Term, 1877.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

Messrs. TENNEYS, FLOWER & ABERCROMBIE, for the plaintiffs in error.

Mr. WILLIAM S. BRACKETT, for the defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The record in this cause is brought here by writ of error to the Superior Court of Cook county, and shows a cause tried on the equity side of that court, wherein George F. Harding was complainant, and J. M. Phelps, Benjamin F. Ray, John V. Farwell and Charles B. Farwell were defendants; the scope of the bill being to obtain a decree setting aside the claims of the defendants on the premises in controversy, and complainant quieted in the possession thereof, and for general relief.

The defendants put in their answer to the bill, setting out in full the grounds of their claim and interest in the premises, which appear to be a purchase of the premises at a sale for taxes evidenced by the usual certificate issued in such case, and the payment of all subsequent taxes, the purchase and payment of taxes having been made by Phelps and Ray with the money of the Farwells and for their use and benefit. In support of their answer, the defendants Phelps and the Farwells filed their cross-bill, in which is set up the sale and purchase of the premises for taxes, and averring a readiness and willingness and an offer to complainant to release all their claims on being reimbursed the taxes so paid by them. The cross-bill prays, as complainant asks in the original and amended bills, the equitable aid of the court, that he be compelled to do equity by paying them their advances for taxes, and that their claim may be declared a valid lien upon the premises and they made subject to its payment.

This bill was fully answered by complainant, and replications duly filed, and the cause heard on the pleadings and stipulations of the parties, and a decree passed as prayed by complainant in his amended bill.

The premises about which this controversy arises were the property of one Richard Mason, who, on October 17, 1867, mortgaged them to the Connecticut Mutual Life Insurance Company to secure the payment of $25,000, covenanting in and by the mortgage to pay all taxes that might be assessed thereon. This mortgage was duly recorded October 18, 1867. On November 1, 1869, Richard Mason and wife executed and delivered a warranty deed of the premises to one Henry Witbeck, which was duly recorded. On November 20, 1869, Witbeck executed an instrument to George A. Lowell, the husband of a daughter of Richard Mason, to sell the land to him. It is not shown in the stipulation when Richard Mason died, nor is his death therein alluded to, but it appears, otherwise, that he died in 1870, and in November, 1871, the Farwells contracted to buy the interest of the heirs of Richard Mason, deceased, in the premises, and on the strength thereof, they filed a bill in the names of these heirs as complainants, and against Witbeck, alleging that the conveyance to him by Richard Mason was but a mortgage, made in the form of a deed, for purposes of security, basing the allegation upon the fact of the execution of the above instrument by Witbeck to Lowell, which provided for a reconveyance by Witbeck on the payment of certain indebtedness due Witbeck and his co-partners from the mortgagor, and a decree was prayed that the deed be declared a mortgage, and to redeem the same. This bill was pending and was not dismissed until after the sale...