Richey v. Sinclair

• Decision Date: 08 June 1897
• Citation: 167 Ill. 184,47 N.E. 364
• Parties: RICHEY v. SINCLAIR et al.
• Court: Illinois Supreme Court

167 Ill. 184

47 N.E. 364

RICHEY

v.SINCLAIR et al.

Supreme Court of Illinois.

June 8, 1897.

Appeal from appellate court, First district.

Suit by Cornelius S. Richey, administrator, against Hector M. Sinclair and others. From a judgment of the appellate court (67 Ill. App. 580) affirming a decree dismissing the bill, complainant appeals. Reversed.Bassett & Bassett, for appellant.

H. T. & L. Helm, Parker W. Tefft, and B. W. Schumacher, for appellees.

This was a bill to foreclose a mortgage, brought January 4, 1895, by Cornelius S. Richey, administrator de bonis non of the estate of William J. Turner, deceased, against Hector M. Sinclair, Lynn Helm, Melville C. Eames, James C. Miller, the Mechanics' & Traders' Loan & Building Association of Chicago, and Charles S. Young. The court sustained a demurrer to the bill, and entered a decree dismissing it, and on appeal the decree was affirmed in the appellate court. The question involved on this appeal is the sufficiency of the bill. The bill alleges: That on the 30th day of May, A. D. 1879, John A. Van Pelt was indebted to William J. Turner in the sum of $1,000, and on that day executed his note for the said sum of money, payable to the order of William J. Turner, six months after the date thereof, with interest at the rate of 8 per cent. per annum. That John A. Van Pelt, on said day, to secure the payment of said note, executed under his hand and seal, and delivered to said William J. Turner, a mortgage for one acre of land off of the northwest corner of block 27 in South Lawn, being a subdivision of the S. 1/2 of section 8, township 36 N., range 14 E. of third P. M., in Cook county, Ill., which was duly acknowledged and recorded as a mortgage in the recorder's office in Cook county on the 27th day of September, 1879, in Book 934 of Mortgages, on page 134. A copy of said mortgage and note are attached, marked Exhibits A and B, respectively, and made part of the bill. That, by some omission or mistake by the draftsman, William J. Turner's name did not appear as grantee in the usual place for grantee's name in said mortgage deed; but it is recited in said mortgage deed that it was given by the party of the first part to secure a note given by the party of the second part (should be ‘to the party of the second part,’-‘by’ should be ‘to’) for the sum of $1,000, payable in six months from date, to the order of William J. Turner. That there is a public road 80 feet wide running through said block 27, diagonally, from the northwest corner of said block to the southeast corner of the same, which road was opened and traveled many years prior to the platting of said block 27, and was then and is now a public highway, known as the ‘Vincennes Road.’ That said block was platted into nine lots, all abutting on said road, as shown by a plat made November 12, 1873, and recorded in the recorder's office of Cook county, and made an exhibit to this bill. That the true intent and meaning of the mortgage was to give William J. Turner a lien on one acre of block 27, out of the northwest corner of same. That William J. Turner died March 13, 1881, and Cornelius S. Richey was duly appointed administrator de bonis non of his estate by the county court of Mercer county, Ill., on the 8th day of June, 1884, and was duly qualified and gave bond, etc., as appears by copies hereto attached. That John A. Van Pelt, on the 5th day of February, 1880, paid on said note $409.92, which is duly indorsed thereon. That on the 1st day of June, 1884, John A. Van Pelt left the state of Illinois, and has not resided in said state since that time, but has continuously resided in the state of Iowa and territory of Utah. It is also alleged that John A. Van Pelt, since the execution of the mortgage, has conveyed all of his interest in the property, which conveyance is subject to the mortgage.

The mortgage attached to the bill as Exhibit A was as follows: ‘This indenture, made this thirtieth day of May, in the year of our Lord one thousand eight hundred and seventy-nine, between John A. Van Pelt, of the city of Chicago, in the county of Cook, and state of Illinois, of the first part, and _____, of the second part: Whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of one thousand dollars, secured to be paid by a certain promissory note bearing even date herewith, payable six months after its date, at Aledo, Mercer county, Illinois, with interest at 8 per cent. per annum, to the order of William J. Turner: Now, therefore, this indenture witnesseth that the said party of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said promissory note above mentioned, and also in consideration of the further sum of one dollar to me in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, remised, aliened, and conveyed, and by these presents do grant, bargain, sell, remise, alien, and convey, unto the said party of the second part, his heirs and assigns, forever, all the following parcel of land situated in Cook county, Illinois: One acre of land of the northwest corner of the block twenty-seven in South Lawn, being a subdivision of the south half of section eight, T. 36 N., R. 14 east, in Cook county aforesaid. To have and to hold the same unto the said party of the second part, his heirs,’ etc.: ‘provided, always, that if the said party of the first part shall well and truly pay to the said party of the second part the aforesaid sum of money, in manner specified in the above-mentioned promissory note, according to the true intent and meaning thereof, then these presents shall be void.’ Release of homestead, and covenants of seizure and general warranty, and signed, sealed, and acknowledged by John A. Van Pelt.

Exhibit B was as follows: ‘$1,000. Chicago, Ills., May 30th, 1879. Six months after date, I promise to pay to the order of William J. Turner one thousand dollars, at Aledo, Mercer county, Illinois, with interest at 8 per cent. per annum, for value received.’

CRAIG, J. (after stating the facts).

It will be observed that the mortgage contained no mortgagee or grantee in that part of the instrument where the grantee's name should properly appear, the name of the mortgagee having been left blank in drafting the mortgage; and it is contended, and the appellate court so held, that the mortgage was void. The law is well settled that a deed without the name of a grantee is invalid. It is said there must be in every grant a grantor, a grantee, and a thing granted; and a deed wanting in either essential will be void. Chase v. Palmer, 29 Ill. 306;Whitaker v. Miller, 83 Ill. 382. But can it be said the mortgage in question, when all of its provisions are considered, contained no grantee or mortgagee? Here the mortgage and a promissory note were executed at the same time, and they are to be treated as one instrument. In the beginning of the mortgage it recites that it is between John A. Van Pelt, of the first part, and _____, of the second part. Here is an omission; and, if the mortgage contained nothing to aid the defect, or show who was intended as the mortgagee, the defect might be regarded as fatal. The mortgage, however, contains this recital: ‘Whereas, the said party of the first part is justly indebted to the said party of the second part in the sum of $1,000, secured to be paid by a certain promissory note, bearing even date herewith, payable six months after its date, at Aledo, Mercer county, Illinois, with interest at 8 per cent. per annum, to the order of William J. Turner: Now, therefore, this indenture witnesseth that the said party of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said promissory note above mentioned, and also in consideration of the further sum of one dollar to me in hand paid by the said party of the second part, have granted,’ etc., ‘unto the said party of the second part,’ etc. Here is a plain statement in the mortgage that John A. Van Pelt, the mortgagor, has executed a promissory note for $1,000 to William J. Turner, and the mortgage is...