Richardson v. Clow

• Decision Date: 31 December 1880
• Citation: 8 Bradw. 91,8 Ill.App. 91
• Parties: AMASA RICHARDSON ET AL.v.ROBERT CLOW, Conservator, etc.
• Court: United States Appellate Court of Illinois

8 Ill.App. 91

8 Bradw. 91

AMASA RICHARDSON ET AL.

v.ROBERT CLOW, Conservator, etc.

Appellate Court of Illinois, Second District.

December Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed April 6, 1881.

Messrs. W. H. RICHARDSON & BROTHER, for appellant; that the delivery of a deed to the agent is a delivery to the principal, cited Wheelwright v. Wheelwright, 3 American Decisions, 66; Furgeson v. Miles, 3 Gil. 363; Duringer v. McConnell, 41 Ill. 228; Jayne v. Gregg, 42 Ill. 413; Blake v. Fash, 41; Ill. 302.

The delivery will be presumed to have been on the day the deed bears date, and the parties are estopped by the recitals: Wincoop v. Cowley, 21; Ill. 570; Kimball v. Walker et al. 30; Ill. 482;

A release under seal may be pleaded in satisfaction of a larger sum than was actually paid: Kingsley v. Kingsley, 20 Ill. 208.

Messrs. BROWN & MEARS, for appellee; that the allegations and proof must correspond, cited Morgan v. Smith, 11 Ill. 194; Oling v. Luitzans, 32 Ill. 66; Moore v. Filman, 35 Ill. 310.

Excluding the deposition of Alfred, worked no injury and therefore would be no ground of reversal: Rowley v. Hughes, 40 Ill. 316; Ryan v. Brant, 42 Ill. 78.

Alfred being in possession was a necessary party: Suite v. Turner, 10 Iowa, 517; 2 Jones on Mortgages, Secs. 1396 and 1413.

LACEY, P. J.

Robert Clow was the conservator of Wm. Hadsell, who was old and imbecile, and brought this suit in equity to foreclose a mortgage executed by Levi P. Richardson on the west half of the northeast quarter, and the east half of the northwest quarter of Sec. No. 10 T. 32, N. R. 10, east, 3d P. M., which land Hadsell had previously deeded to the mortgagor. The notes were for $2,360 29-100. One note for $2,000 and the other for $360 29-100. The mortgage and notes were dated Dec. 1st, 1865. One note due Dec. 1st, 1868, and the $2,000 note, due Dec. 1st, 1871, drawing 9 per cent. interest from date. This bill was filed Dec. 6th, 1878. The mortgagor was made a party, together with Martha and Amasa Richardson, his father and mother, who were in possession, and Martha claiming to own the equity of redemption of the land derived by and from her son Levi A., the mortgagor, and Alfred Richardson, who was a tenant on the land of Martha, and Amasa, his father. The validity of the mortgage is not disputed. But the answer sets up and claims that Martha Richardson, her husband and sons acting as her agents, had made payments on the notes from time to time until they had been more than paid in full.

Also that Wm. Hadsell had executed a release deed releasing the mortgage on the east half of the N. W. qr. of the section which release is in evidence and bears date, the 30th day of January A. D. 1874; and purports to be for the consideration of one dollar and for other good and valuable considerations, to wit, twenty two hundred dollars, which is set up as a bar to the foreclosure on that portion of the land. Martha Richardson also files a cross-bill setting the same matters, and asking that the mortgage be canceled as to the other eighty not released, and for a decree over for the amount claimed to be overpaid.

The court after hearing the evidence found that there was yet due on the mortgage the sum of $2,169 68-100 and decreed that all the land described in the mortgage be sold to satisfy it, holding in regard to the release that it was invalid for two reasons. 1st, for want of delivery, and 2nd, for want of consideration.

From this decree the appeal is taken and various causes assigned for error and especially that the decree was for too much, and that the court held the release to the west eighty inoperative and void. There was a credit that appeared on the mortgage of twelve hundred dollars and probably had been on the note of $2,200, of date Jan. 30, 1874, the same date of the release. The evidence shows that at the time the release was executed, Wm. H. Richardson, one of the sons of Martha, paid on the note, for Martha, his mother, one thousand dollars in money, and that Hadsell agreed to credit this note with $2,200. It is averred in the answer and cross bill that this twelve hundred dollars was allowed by way of advancement. Hadsell being an old man, some 80 odd years old, having no wife or children and that Martha Richardson was his niece. It is entered on the mortgage as of the same date of the release, in the handwriting of Hadsell, “I hereby agree to allow Martha Richardson, wife of Amasa Richardson, a niece of mine, twelve hundred dollars in my will; and if her equal share should not amount to that sum to take the amount out of the whole pile.” The court below allowed only the one thousand dollars cash payment on the note and rejected the balance, and this is also assigned for error. In this we think the court did not err. The answer admits that the credit was only an advancement. We hold that the twelve hundred dollars was only intended as a gift and was without any consideration, and cannot be pleaded as a credit on the note and mortgage. It is claimed that the recital in the lease as to the consideration cannot be contradicted; but the consideration expressed in a deed may be contradicted and explained by parol evidence, and especially that would be so when it is sought to apply that consideration, so expressed to satisfaction of mortgage as to the other portion of the land not released. Even if the consideration could not be contradicted so as to defeat the release, it would not follow that it could not be explained when attempted to be applied as payment on the notes: Stone v. Duvall, 77 Ill. 475; Seders v. Riley, 22 Ill. 109; Benjamin v. McConnel, 4 Gil. 536; Herman on Estoppel, Sec. 246, page 267. The court below was authorized to reject the proposed credit of twelve hundred dollars, as being a mere intended gift, and a credit without consideration. No gift is complete without delivery; a mere unexecuted promise to give is void, and not enforceable either in law or equity. A promissory note executed and delivered by a party as a gift is not enforceable against the maker's estate, for want of a consideration to support it. The promise to pay money is no more a ground of action than the promise to deliver a chattel as a gift. Bonds and notes of third parties, may be the subject of gift, and when actually delivered the gift complete. So long as there exists the locus pœnitentiæ the gift is incomplete. A credit on a promissory note entered without consideration, is not a complete gift within the meaning of the law. It is in substance a promise that when the note is finally surrendered, the payee will not demand the full face of the note, by the amount indicated as a credit, and the credit is given as an earnest of that intention. The note itself is not surrendered, even if the surrender of one's own note could be regarded as a gift. It remains in full force and effect by its terms, and is under the full control of the payee. He has the right to repent and erase the indorsement: Blanchard v. Williamson, 70 Ill. 647; Schouler on Personal Property, 109, prove this principle.

The point made by counsel that there was a consideration for the credits in that it is contended that Hadsell promised to credit the note with $2,200 in case he, W. H. Richardson, a third party, would step in and borrow enough to make up a thousand dollars to pay Hadsell is not tenable for the reason that the evidence shows that W. H. Richardson was acting throughout the whole transaction as the agent of Martha Richardson, for her, and as such...