Ross v. Sutherland

• Decision Date: 31 January 1876
• Citation: 81 Ill. 275,1876 WL 9970
• Parties: WILLIAM ROSSv.RICHARD B. SUTHERLAND.
• Court: Illinois Supreme Court

81 Ill. 275

1876 WL 9970 (Ill.)

WILLIAM ROSS

v.RICHARD B. SUTHERLAND.

Supreme Court of Illinois.

January Term, 1876.

WRIT OF ERROR to the Circuit Court of Edgar county; the Hon. OLIVER L. DAVIS, Judge, presiding.

Messrs. BISHOP & MCKINLAY, and Mr. JAMES A. EADS, for the plaintiff in error.

Mr. A. J. GALLAGHER, and Mr. JOSEPH E. DYAS, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 1st day of September, 1869, William Ross, the plaintiff in error, being the owner of some 1100 acres of land in Edgar county, of the value of about $36,000, the lands were on that day sold by the master in chancery of the United States Circuit Court, on foreclosure of a mortgage, to one William N. Coler, for $8674.46. Afterward Richard B. Sutherland, the defendant in error, bought from Coler the certificate of purchase, and Coler assigned the same to Sutherland.

After Sutherland became the owner of the certificate of purchase, three several agreements were made between him and Ross, relative to the lands:

1. Before the expiration of the twelve months within which Ross had the right to redeem from the sale, it was agreed between him and Sutherland that Ross might redeem at any time within the period of three months after the expiration of the twelve months--this time expiring on December 1, 1870.

2. On the 20th day of November, 1870, another contract was made by the parties, whereby it was mutually agreed that the time for redemption should be further extended for a period of two months, which time would expire on February 1, 1871, and for said extension of time Ross agreed to pay Sutherland the amount for which the land was sold, ten per cent per annum interest thereon to date of redemption, and the additional sum of two hundred dollars.

3. Before the expiration of the time specified in the second contract, namely, on the 21st day of January, 1871, another agreement was entered into between the parties, to the following effect:

Ross agreed to, and did, on that day convey to Sutherland 122 acres of the land mentioned in the certificate of purchase. Sutherland agreed to convey to Henry and Lewis C. Ross, sons of said William Ross, 820 acres of the land if he should be paid, on or before the first day of February, 1872, the sum of $12,582.46.

As to the disposition made of the other 140 acres included in the certificate of purchase, the record is silent, but no complaint is made that it was not transferred by Sutherland.

On the 29th day of September, 1871, Ross borrowed the money, through one C. W. Levings, to pay off what he owed Sutherland, and directed Levings to pay to Sutherland his claim; and Levings, accordingly, on that day paid to Sutherland for Ross $13,538, on Sutherland's statement that that was the amount due, and Sutherland conveyed the lands as requested by Ross, to him and his sons.

On the 24th day of February, 1874, Ross filed his bill in chancery against Sutherland, for relief, on the ground of...