Richardson v. Hockenhull

• Citation: 1877 WL 9499,85 Ill. 124
• Parties: WILLIAM RICHARDSONv.ROBERT HOCKENHULL et al.
• Decision Date: 31 January 1877
• Court: Illinois Supreme Court

85 Ill. 124

1877 WL 9499 (Ill.)

WILLIAM RICHARDSON

v.ROBERT HOCKENHULL et al.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. DUMMER & BROWN, for the appellant.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

On the 16th day of July, 1873, Benjamin F. Bergen, being seized of two certain lots in Jacksonville, gave a mortgage on the property to William Richardson, to secure a note of $1000 and interest, due June 16, 1874. Subsequently Bergen sold the lots to Thomas O'Brien, subject to the mortgage, which O'Brien assumed and agreed to pay. On the 16th day of June, 1874, the defendants, Nichols & Brennan, recovered a judgment against O'Brien for $284.60, and on the 21st day of September, 1874, the defendants, Hockenhull, King & Elliott, recovered a judgment against O'Brien for the sum of $500. The original mortgage given by Bergen to Richardson, not having been paid, Richardson prepared the necessary papers to foreclose the same, when, on the 24th day of October, 1874, an arrangement was made by which O'Brien conveyed by quit-claim deed the equity of redemption to Richardson, in satisfaction of the mortgage debt. Bergen, at the same time, made a quitclaim deed to Richardson, and two days afterwards the $1000 note was surrendered and the mortgage released upon the record.

After the mortgage given to Richardson was canceled of record, executions were issued upon the two judgments and levied upon the property. This bill was filed by Richardson to enjoin a sale of the property under the executions, and for the purpose of foreclosing the mortgage given by Bergen to him on the 16th day of July, 1873, but which he had canceled of record at the time O'Brien had conveyed the equity of redemption to him in October, 1874. Upon the hearing, a decree was rendered dismissing the bill, to reverse which Richardson appealed.

It is urged by appellees, that when Richardson accepted a deed from O'Brien his mortgage became merged in the fee, and ceased to be a prior lien on the premises as against the two judgments; and this, as we understand the record, is the only important question presented. It does not necessarily follow, that a merger exists where a greater and less estate are united in the same person. As is said by Hilliard on Real Property, vol. 1, page 444, “A court of equity will keep an incumbrance alive or consider it extinguished, as will best serve the purposes of justice and the actual and just intention of the parties. It will sometimes hold a charge extinguished where it would subsist at law; and sometimes preserve it when, at law, it would be merged.” The question is always one of intention. The interest of the parties and intention are to be the controlling considerations.

In Campbell v. Carter, 14 Ill. 286, where a question of this character arose, it is said, “The intention is the controlling consideration where it has been made known, or can be inferred from the...