Sanders v. Peck

• Decision Date: 31 October 1889
• Citation: 131 Ill. 407,25 N.E. 508
• Parties: SANDERS v. PECK et al.
• Court: Illinois Supreme Court

131 Ill. 407

25 N.E. 508

SANDERS

v.PECK et al.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

Bill by Walter L. Peck and others to reform and foreclose a trust-deed given by the Chicago & Great Western Railroad Land Company to John N. Jewett, upon certain land at Riverside, near Chicago, to secure bonds of the Chicago & Great Western Railroad Company. Joshua C. Sanders, who was a defendant and crosscomplainant, appeals.

D. T. Corbin, for appellant.

High & Wegg and Page & Booth, for appellees.

BAKER, J.

This case was before us at a former term and is reported in 112 Ill. 408, under the title of Chicago & G. W. R. L. Co. v. Peck. The cause, if such a combination of controversies may properly thus be designated, consisted of four original bills and eight cross-bills which, by agreement of all parties, had been heard together. The then decree was in part affirmed and in part reversed for the errors indicated in the opinion at that time filed, and the cause remanded for further proceedings in conformity with such opinion. The numerous questions, both of law and of fact, then involved in the litigation are very fully stated in the report of the case above mentioned. Upon the remanding of the cause to the circuit court certain proceedings were had therein, and a decree was entered which appellees insist is in conformity with the decision of this court upon the former appeal. With this latter decree, which is now before us, all the parties to the many and complicated controversies in question seem to be content, except Joshua C. Sanders, the now appellant. Sanders was a defendant to the original bill filed by Peck and his associates to foreclose the Jewett trust-deed, and he answered the same. He also filed a crossbill in which he set forth that he had purchased in good faith about 195 bonds of the Chicago & Great Western Railroad Company, and that he had also purchased about 300 lots of land at Riverside from the Chicago & Great Western Railroad Land Company, and that he did so having in mind the provision of the trust-deed of said land company to John N. Jewett, which provided for a release therefrom of lots in exchange for said bonds, and intending to get the lots released by the surrender of said bonds; that in accordance with the provisions of said trust-deed, he had duly tendered said bonds to John N. Jewett, and requested him to execute a release discharging said lots from the lien thereof; that Jewett, trustee, had refused to receive said bonds, and execute said release. He claimed that he was entitled to have from Jewett a release and discharge of the said lots, upon surrender of his said bonds, and that a foreclosure of said trustdeed, as prayed for in the original bill of Peck and others, so far as the lots were concerned, would result in manifest injustice to him, and he prayed that Jewett, upon surrender of his said bonds, be decreed to release and discharge his said lots from the lien of the said trust-deed. The original decree in the cause found that the deeds of the land company to Sanders for the 301 lots were procured by fraud, and set them aside and dismissed the cross-bill with costs. But in Chicago & G. W. R. L. Co. v. Peck, supra, this court held that there was no sufficient evidence that the deeds to Sanders were obtained by fraud, and that Sanders as the holder of bonds to the amount of the schedule prices of his lots, which he had tendered to Jewett, was, by the plain terms of the deed of trust, entitled to the release which he demanded, and that the relief he asked should have been granted to him upon the surrender of his bonds. The substance of the present decree upon the cross-bill of Sanders is that Jewett, trustee, upon delivery to him by Sanders of the 195 bonds, and all the coupons thereto belonging, on the 1st day of June, 1874, the date of the tender of the bonds to Jewett, and upon the refunding by Sanders to Peck and associates of $2,212.01, paid by them on 53 of the 301 lots, for taxes and assessments, with interest, within 90 days from the entry of the decree cancel the 195 bonds, and execute to Sanders a release of the 301 lots from the lien of the trust-deed, and, in case of the refusal of Jewett so to do; that the master in chancery, as special commissioner, should receive and cancel the bonds, and execute such release, and that, in case Sanders failed to surrender the bonds and coupons, and refund the taxes upon the 53 lots within 90 days, then his right to a release should cease and determine, and his cross-bill be dismissed. Upon the former hearing in this court, it was also held that the releases of the six Page & Kimbark trust-deeds, and of the Henry Greenebaum trust-deed were invalid, and said releases were set aside, and all of said trust-deeds were held to be prior liens to the Jewett trust-deed; and therefore, by the present decree, 190 of the Sanders lots, of the schedule value of $120,000, are ordered to be sold to satisfy these restored incumbrances. Sanders appealed from the last decree of the circuit court, to the appellate court, and that court reversed so much of the decree as directs that, upon the delivery to Jewett, trustee, by Sanders of the 195 bonds which he tendered to Jewett, then the 301 lots in Riverside should be released from the lien of the Jewett trust-deed, and affirmed the decree in all other respects, and remanded the case, with directions to decree that, upon said Sanders, within 90 days, surrendering to Jewett or the master bonds with coupons to the amount of the scheduleprice of such of the 301 lots as he (said Sanders) shall at the time of making such surrender, designate or specify, then said Jewett, or, in case he refuses, the master, shall receive said bonds with coupons so surrendered, and cancel the same, and release the said Sanders, upon his also paying $2,212.01 taxes, and interest thereon, the lots which may by him be designated or selected from said 301 lots; and, in case said Sanders failed to select lots and surrender bonds therefor, and refund said taxes within 90 days from the entry of such decree, then that his cross-bill should be dismissed. The cause is now brought again to this court by the further appeal of Sanders; and the assignments of error and of crosserror are quite numerous, but the material questions at issue seem to be as follows: (1) Should Sanders be permitted to redeem, from the lien and operation of the Jewett trust-deed, such only of his 301 lots as he now chooses to redeem? (2) Was it error to require appellant to refund the taxes which Peck and his associates paid on the 53 lots which appellant gets under the decree? (3) Was it error to require appellant to surrender the accrued interest coupons along with the bonds to which they belong, without crediting him with the amounts due upon such coupons in making up the schedule prices of the 301 lots? (4) Was it error to refuse appellant permission to either file a supplemental cross-bill or amend his original cross-bill in the particulars specified in the request? (5) Was it error to require appellant to surrender the 195 bonds and the coupons, and refund the $2,212.01 taxes paid, and interest, within 90 days from the entry of the decree? (6) Was it error to enter the decree with references to the facts and rights of parties existing June 30, 1877, and refuse to hear evidence to show that the Chicago & Great Western Railroad Company is now possessed of a large amount of property which is covered by its trust-deed to the Farmers' Loan & Trust Company, which was given to secure the bonds which were also secured by the Jewett trustdeed? (7) Was the decree ‘that the principal of said bonds is hereby declared to be due’ erroneous? (8) Was it error to refuse to set aside the deficiency decree? (9) Was the decree for costs erroneous?

The complaint of appellant's cross-bill was that he bought the 195 bonds of $1,000 each, and the equity of redemption in the 301 lots, in view of the provision and terms of the Jewett trust-deed, and intending to get the lots released therefrom; that he accordingly tendered, in 1874, to the trustee, bonds amounting to the schedule prices of his lots, and exhibited his deeds, and demanded the release of said lots according to the terms of the trust-deed, and the trustee refused to release the same. He claimed his rights as above stated, and offered to bring the bonds into court and surrender them on delivery to him of a release of said lots from said trust-deed. While there was a general prayer for other and different relief, yet his specific and special prayer was for a decree ‘that Jewett release his 300 lots; and, if he do not, that the master may execute such release with like effect.’ Appellant was denied relief in the circuit and appellate courts and thereupon brought the record to this court, and urged, by his assignments of error, that the courts below ‘erred in decreeing the Jewett trust-deed to be a lien on the lots and lands conveyed by the land company to him, and in dismissing his cross-bill, and in not decreeing to him the relief prayed for therein.’ We thereupon found the fact to be that appellant had made a tender to the trustee of bonds which he owned to the amount of the schedule prices of his lots, and had demanded a release of his lots, which was refused, and decided that he, as the holder of bonds to the amount of the schedule prices of his lots, which he tendered, by the plain terms of the deed of trust, was entitled to the release which he demanded. We at that time concluded our consideration of this particular branch of the consolidated case with the remark: ‘We are of opinon the relief asked by Sanders should have been granted to him upon the surrender of his bonds.’ Upon that appeal the decree in the foreclosure proceedings in which this cross-bill was filed was in most respects affirmed, but it ‘was modified in certain particulars,’ (see City of...