Phelps v. Reeder
| Decision Date | 31 January 1866 |
| Citation | 39 Ill. 172,1866 WL 4377 |
| Parties | LEANDER P. PHELPSv.JOB J. REEDER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McDonough county; the Hon. JOHN S. BAILEY, Judge, presiding.
The facts in this case fully appear in the opinion.
Mr. J. S. BAILEY, for the appellant.
Mr. D. G. TUNNICLIFF, for the appellees.
This was a proceeding in chancery presenting, substantially, the following facts:
On the 22d day of September, 1857, Phelps, the appellant, and Reeder, the appellee, were in joint possession of certain mill property in the county of McDonough, Reeder in his own right, and Phelps as mortgagee of one Dewey, who had been tenant in common with Reeder. On that day Phelps bought the interest of Reeder, agreeing to pay him therefor $2,425. The property, however, was at that time subject to certain mechanics' liens, which were being prosecuted, and the precise amount of which was undetermined, as, also, to certain judgments against Reeder. These incumbrances, it was stipulated in the contract, were to be paid off by Phelps, by allowing a sale to take place under the anticipated decree, and having him become the purchaser; and it was further stipulated that he should be allowed, as a credit on the purchase-money, “one-half of the full amount of the principal, interest and costs of suit on said debts and claims for mechanics' labor and material.” It was further agreed that the balance due Reeder should be paid in eighteen months from the sale, and that Phelps should not delay the sale. The sale was held on the 15th of January, 1858, and the property purchasd by Phelps for $2,305.92. He also paid a part of the individual judgments against Reeder, and in the months of February, March and May he bought six judgments, rendered before a justice of the peace, three of which were against Reeder alone, and three rendered against Reeder & Dewey. On the 24th of December, 1857, Reeder executed to Robert L. Howell his ten promissory notes, seven of which were for $95 each, two for $90, and one for $80, and on the 15th of January, 1858, Reeder confessed ten several judgments on these notes before a justice. On the 18th of January, 1858, Howell garnisheed Phelps on seven of these judgments, who appeared, answered and was discharged, and on the 8th of February, Howell appealed from the judgment of discharge to the Circuit Court. Thereupon Phelps filed his bill to enjoin the further prosecution of said processes of garnishment, alleging that, by his discharge of the mechanics' liens, by his payment of the individual judgments against Reeder, and by the judgments against Reeder before a justice of the peace, which he had bought, and for which Reeder was now indebted to him, the purchase-money on the mill property was more than paid. Howell answered, and also filed a cross-bill. Proofs were taken, all objections to the jurisdiction were waived, and on the hearing the court rendered a decree finding the sum of $1,467 to be still due on the contract of sale, and directing that there should be paid out of it, first, the amount of the seven judgments upon which Phelps had been garnisheed; secondly, the three judgments before a justice rendered against Reeder individually, and bought by Phelps, the amount due upon which judgments Phelps was allowed to retain; and, thirdly, that the residue of the $1,467 should be applied on the three judgments in favor of Howell against Reeder, on which no process of garnishment had been issued. From this decree Phelps appealed.
It appeared, by the pleadings and proofs, that, after the purchase by Phelps, and before the sale under the mechanics' liens, he had bought these liens from their respective owners at a large discount. The real controversy in this case grows out of this circumstance,...
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Adm'rs of Wasden Driggers v. Bell
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