Piot v. Davis
| Decision Date | 26 October 1909 |
| Citation | 241 Ill. 434,89 N.E. 676 |
| Parties | PIOT v. DAVIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, Fourth District, on Error to Circuit Court, St. Clair County; R. D. W. Holder, Judge.
Suit by J. B. Piot, executor, etc., against E. R. Davis to foreclose a mortgage and declare a lien. From a decree for complainant, defendant brings error. Affirmed.
James J. Rafter, for plaintiff in error.
Louden & Crow, for defendant in error.
This was a bill in chancery, in the usual form, filed by J. B. Piot, the testator of the defendant in error, in the circuit court of St. Clair county, against Inez Schmith, Albert L. Schmith, E. R. Davis, and others, to foreclose a mortgage in the nature of a trust deed, bearing date September 28, 1899, upon premises located in said county, given by Inez Schmith and husband to H. D. Sexton, as trustee, to secure the payment of a promissory note of even date with said mortgage, for the sum of $2,000, due one year after date, bearing interest at 6 per cent. per annum, and signed by Inez Schmith and payable to H. D. Sexton, and by him indorsed and delivered to the testator of the defendant in error, before maturity. The defendants, with the exception of E. R. Davis, made default, and Davis answered the bill. The issues were tried by the court, and a decree was entered in favor of the testator of the defendant in error for $2,403.70, which decree was affirmed by the Appellate Court for the Fourth District, and E. R. Davis has sued out this writ of error to review the judgment of the Appellate Court. During the pendency of the case in the Appellate Court the death of J. B. Piot was suggested, and his executor J. B. Piot, was substituted as defendant in error in his stead.
It appears from the pleadings, proofs, and decree: That prior to the 10th day of June, 1891, the premises in question belonged to the wife of the plaintiff in error; that thereafter the same were conveyed by her and the plaintiff in error to their daughter, Inez Davis (now Inez Schmith), and that on June 11, 1895, Inez Davis conveyed the same to E. R. Davis for $625, which deed was recorded on October 20, 1904; that, during the time the title was in the wife of the plaintiff in error, the plaintiff in error and wife mortgaged the same to John Drury for the sum of $1,000; that the daughter, at the time of the conveyance to plaintiff in error, resided upon said premises with her parents; that subsequent to the conveyance to plaintiff in error he caused the buildings on the premises to be insured in his daughter's name; that, at the time the loan sought to be foreclosed was being negotiated, the plaintiff in error stated to Sexton, who made the loan, that ‘they were very much in need of the money, and that it would be all right to make the loan’; that out of the proceeds of the loan the debt due John Drury was paid and his mortgage released; that during all that time the title had stood of record in Inez Davis; and that plaintiff in error, subsequent to the date of the mortgage, at times paid the interest thereon as it accrued and thereby recognized the validity of the mortgage. There is, as the Appellate Court suggests, some conflict in the testimony. We, however, agree with that court that the evidence fairly tends to show that E. R. Davis assisted his son-in-law and daughter in negotiating said loan, and that he never made any claim that he owned said premises or had any interest therein until October 20, 1904, some five years after said loan was made, when he recorded the deed to him from Inez Davis, his daughter.
It is first contended that the record fails to show that a replication was filed to the answer of the plaintiff in error, and it is said that the answer for that reason should be taken as true. The certificate of the clerk, attached to the record, states that the record contains a correct copy of ‘the bill of complaint, summons, answer, certificate of evidence and decree.’ From what appears in this certificate it may be a replication was filed. In any event, the case was not heard upon bill and answer, but upon the pleadings and evidence, and in that state of the record...
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Watt v. Cecil
...contention appellees cite Robinson v. Miller, 317 Ill. 501, 148 N.E. 319,Dempsey v. Burns, 281 Ill. 644, 118 N.E. 193, and Piot v. Davis, 241 Ill. 434, 89 N.E. 676. In each of those cases no replication was filed, but the parties each took testimony on the issues raised in the answer. Under......
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Sielbeck v. Grothman
...not growing out of or subsequent to the mortgage should not be tried in foreclosure proceedings (Gage v. Perry, 93 Ill. 176;Piot v. Davis, 241 Ill. 434, 89 N. E. 676; 2 Jones on Mortgages [4th Ed.] § 1440); but it is also true that if persons having prior interests are made parties to a for......
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Robinson v. Miller
...of a replication is waived (Keightley v. Glass, 275 Ill. 149, 113 N. E. 951;Guerin v. Guerin, 270 Ill. 239, 110 N. E. 402;Piot v. Davis, 241 Ill. 434, 89 N. E. 676;Jones v. Neely, 72 Ill. 449), and the plaintiff in error cannot complain of any informality in the order of reference (Freese v......
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Pree v. Hymbaugh
...a reply is waived and the absence of a reply does not constitute an admission. Watt v. Cecil, 368 Ill. 510, 15 N.E.2d 292; Piot v. Davis, 241 Ill. 434, 89 N.E. 676. This is true even where defendant specifically asserts at the time of the trial that he does not waive the failure to file a r......