Ryan v. Dunlap

• Decision Date: 30 November 1855
• Parties: EBENEZER Z. RYAN, Surviving Assignee of the Bank of Illinois, Plaintiff in Error,v.JAMES DUNLAP ET AL., Defendants in Error.
• Court: Illinois Supreme Court

17 Ill. 40
1855 WL 5491 (Ill.)
63 Am.Dec. 334
7 Peck (IL) 40

EBENEZER Z. RYAN, Surviving Assignee of the Bank of Illinois, Plaintiff in Error,
v.
JAMES DUNLAP ET AL., Defendants in Error.

Supreme Court of Illinois.

November Term, 1855.

[17 Ill. 41]

The following statement will exhibit the principal facts involved in this controversy:

On the 19th day of February, 1840, John C. Stickney being seized in fee of lots 1111 and 1112, in Shawneetown, mortgaged the same to the Bank of Illinois, to secure debts then due by Stickney to the bank, and advances to be thereafter made by said bank to Stickney, for the purpose of enabling him to finish off a house then in process of construction upon said lots; the whole debt and advances not to exceed the sum of $12,000. A note was executed and delivered for that amount, and is recited in said mortgage. The mortgage was recorded March 10, 1840. On the 29th day of December, 1840, Stickney conveyed said lots in fee to E. H. Gatewood, and the deed was recorded January 12, 1841. On the 16th day of June, 1842, Gatewood mortgaged the same lots to James Dunlap, to indemnify him as surety on a bail bond, which mortgage was recorded July 11th, 1842. On August 8th, 1842, the suit in which bail bond was given was compromised, and the notes of Gatewood taken in satisfaction, with Dunlap as surety. In 1847 these notes were paid by Dunlap, and he claims indemnity under the mortgages. On July 1st, 1842, Gatewood mortgaged the same premises to Newcomb & Co., reciting the mortgage made by Stickney to the bank; this mortgage was recorded July 16th, 1842. On the 9th day of May, 1845, Newcomb & Co. assigned their mortgage to W. & C. Fellows, without recourse. May 4th, 1843, the bank, by Dunlap as president, gave a power of attorney to A. G. Caldwell to release mortgages when satisfied, which power was recorded May 22d, 1843. On the 19th day of August, 1843, Gatewood executed and delivered to the bank, James Dunlap being then president, his note for $15,280, the amount then due on the Stickney mortgage, and executed and delivered a mortgage on the same lots and other property previously mortgaged to the bank to secure the payment of the note; the Stickney note was surrendered with an indorsement signed by John Siddall, cashier, but in Caldwell's hand-writing, stating that the note had been paid by Gatewood, and on the same day Siddall released the mortgage from Stickney to the bank. There was no payment in fact of the Stickney mortgage. On February 25th, 1843, the act was passed to “put the Bank of Illinois in liquidation,” to take effect March 3d, 1843. On the 25th February, 1843, a supplemental bill was passed and accepted by the bank, by virtue of which the prior act was suspended for four years, and by which the bank was to ““ be finally wound up according to the rules and regulations hereby established; ” and the bank was prohibited from “loaning” any money “but shall confine all its operations to winding up its affairs, collecting and

[17 Ill. 42]

securing its debts.” A supplemental act was passed February 28th, 1845, vesting the effects of the bank in assignees, &c., with power “to collect all debts due to said bank.” Under this act Dunlap, as president, assigned the effects of the bank to...