Richey v. Sinclair

CourtIllinois Supreme Court
Writing for the CourtCRAIG
Citation167 Ill. 184,47 N.E. 364
Decision Date08 June 1897
PartiesRICHEY v. SINCLAIR et al.

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.


[167 Ill. 187]

[47 N.E. 365]

Bassett & Bassett, for appellant.

167 Ill. 188]H. T. & L. Helm, Parker W. Tefft, and B. W. Schumacher, for appellees.

[167 Ill. 184]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. [167 Ill. 185]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 [167 Ill. 186]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...

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21 practice notes
  • Mulkanoor v. Am. Home Mortg. Corp (In re Mulkanoor), Bankruptcy No. 17 BK 18799
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • 28 Octubre 2018
    ...of the parties can be discerned from the facts surrounding the transaction." Covey , 284 B.R. at 663 ; see also Richey v. Sinclair , 167 Ill. 184, 47 N.E. 364 (1897) and Beaver v. Slanker , 94 Ill. 175 (Ill. 1879). Plaintiff next argues that even if the Court overlooks the fact that HLB Mor......
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Abril 1905
    ...Ill. 662, 15 N. E. 275;Banking Ass'n v. Bank, 157 Ill. 524, 41 N. E. 919;Jones v. Foster, 175 Ill. 459, 51 N. E. 862;Richey v. Sinclair, 167 Ill. 184, 47 N. E. 364. Analysis will show that none of these cases are authority in this jurisdiction. In Emory v. Keighan, Banking Ass'n v. Bank, an......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 168 Ill. 184, 47 N. E. 364. In Texas it [135 N.W. 741]has been held that a sale under a deed of trust may be executed, although the right of action on the debt secured ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...the statute did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 167 Ill. 184 (47 N.E. 364). In Texas it [135 N.W. 741] has been held that a sale under a deed of trust may be executed, although the right of action on the ......
  • Request a trial to view additional results
21 cases
  • Mulkanoor v. Am. Home Mortg. Corp (In re Mulkanoor), Bankruptcy No. 17 BK 18799
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • 28 Octubre 2018
    ...of the parties can be discerned from the facts surrounding the transaction." Covey , 284 B.R. at 663 ; see also Richey v. Sinclair , 167 Ill. 184, 47 N.E. 364 (1897) and Beaver v. Slanker , 94 Ill. 175 (Ill. 1879). Plaintiff next argues that even if the Court overlooks the fact that HLB Mor......
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • 27 Abril 1905
    ...Ill. 662, 15 N. E. 275;Banking Ass'n v. Bank, 157 Ill. 524, 41 N. E. 919;Jones v. Foster, 175 Ill. 459, 51 N. E. 862;Richey v. Sinclair, 167 Ill. 184, 47 N. E. 364. Analysis will show that none of these cases are authority in this jurisdiction. In Emory v. Keighan, Banking Ass'n v. Bank, an......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • 10 Abril 1912
    ...did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 168 Ill. 184, 47 N. E. 364. In Texas it [135 N.W. 741]has been held that a sale under a deed of trust may be executed, although the right of action on the debt secured ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • 10 Abril 1912
    ...the statute did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 167 Ill. 184 (47 N.E. 364). In Texas it [135 N.W. 741] has been held that a sale under a deed of trust may be executed, although the right of action on the ......
  • Request a trial to view additional results

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