Rogers v. Meyers

• Decision Date: 30 June 1873
• Citation: Rogers v. Meyers, 68 Ill. 92, 1873 WL 8283 (Ill. 1873)
• Parties: WM. W. ROGERSv.HARVEY MEYERS et al.
• Court: Illinois Supreme Court

68 Ill. 92

1873 WL 8283 (Ill.)

WM. W. ROGERS

v.HARVEY MEYERS et al.

Supreme Court of Illinois.

June Term, 1873.

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

This was a bill in chancery, by William W. Rogers against Harvey Meyers, The Farmers' Bank of Kentucky, and William W. Willard, to enjoin the prosecution of a suit at law, and for other relief, stated in the opinion of the court. Willard was the plaintiff's attorney in the suit at law.

Mr. D. C. JONES, for the appellant.

Mr. W. W. WILLARD for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant filed a bill in chancery against appellees, in the Marion circuit court. It charges that the complainant executed two promissory notes, for the sum of $6000 each, payable to one E. P. Buckner, at one year from date, with six per cent interest per annum, from date. To secure their payment, he gave a mortgage on two lots of ground in the city of Covington, in the State of Kentucky.

It alleges that one lot was worth $15,000, and was known as the warehouse property; that complainant became liable, as surety for other persons, to the Farmers' Bank of Kentucky, which was on other considerations than the debt for which the notes were given to Buckner; that the bank obtained a judgment against appellant for a large sum of money on the notes on which he was surety, all of which was paid and satisfied, except $6,975, from other property than that mortgaged to Buckner; that this last sum was satisfied by sale of the warehouse lot, on which Buckner held the mortgage; that complainant paid one of the notes given to Buckner, and another lot embraced in the mortgage was released, but the warehouse lot was incumbered by the Buckner mortgage when it was sold and bid in by the bank; that the mortgage was a prior lien, and duly recorded, when the bank obtained the judgment on which the property was sold.

It is alleged that the bank purchased charged with notice of the mortgage, and only bought the equity of redemption. It is charged and claimed that the bank, by purchasing, became liable to pay the mortgage, it being a prior lien to the sale; that the property, when sold, was worth $15,000; that the unpaid note given to Buckner had been sued upon in the Marion circuit court, in the name of Meyers, who claims to hold the note as assignee; that Meyers, the bank, and Buckner colluded together to defraud complainant, by enforcing payment of the note, when the bank has in fact paid the same, but had it assigned to Meyers, and he is the ostensible holder of the note, when it was in fact paid, thus to enable the bank to hold the mortgaged property under its purchase on the judgment.

That even if Meyers is the bona fide holder of the note, yet he has a lien, by virtue of the mortgage, on the property, and the right to sue at law on the note. If a judgment should be recovered against complainant, and he be compelled to pay the same, that he be subrogated to the rights of Meyers in the mortgage, and have the right to foreclose it on the warehouse property; and to avoid a multiplicity of suits, that Meyers be enjoined from prosecuting his suit on the note. Appellee Meyers answered, under oath, admitting the execution of the notes and mortgage, and the assignment of the note to him, and the suit thereon, as charged, but insists that he purchased it in good faith, and for a valuable consideration paid by him, and he denies all collusion; that under the laws of Kentucky, the bank, by the purchase of the warehouse property under the execution, only acquired a lien or second mortgage on the property to secure their bid, with ten per cent interest thereon, from the time of the sale until the debt should be paid; that Rogers is still the owner of the property, subject to the mortgage and the lien of the bid of the bank,...