Shaver v. Williams

• Decision Date: 30 September 1877
• Citation: 87 Ill. 469,1877 WL 9881
• Parties: ABRAHAM SHAVERv.HENRY WILLIAMS.
• Court: Illinois Supreme Court

87 Ill. 469

1877 WL 9881 (Ill.)

ABRAHAM SHAVER

v.HENRY WILLIAMS.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM BROWN, Judge, presiding.

Messrs. CRAWFORD & MARSHALL, for the appellant.

Messrs. COON & CURTIS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity brought by Henry Williams to foreclose a mortgage executed by Charles F. Morgan and wife on certain premises in McHenry county, to secure an indebtedness of $3,700. The mortgagor and his wife, together with Charles F. Morgan and Abraham Shaver, who also held mortgages on the same premises, were made parties defendant to the bill. A decree of foreclosure was rendered in favor of complainant substantially as prayed for in the bill, to reverse which Shaver alone appealed. It appears from the evidence that on March 17, 1868, Morgan borrowed of Williams $3,700, and gave his note for the amount due in ten years, with interest payable semiannually at ten per cent. And a mortgage was executed to secure the payment of the note, bearing the same date. A certificate of acknowledgment was attached to the mortgage, dated September 9, 1868, which was in the form required by the statute, but the name of the justice was not signed to the same. On September 9, 1868, the mortgage was recorded; subsequently, and on October 7, 1871, the mortgage was again recorded, the certificate of acknowledgment having been signed by “James B. Church, justice of the peace,” and bearing date September 9, 1868. Prior to this, however, and on September 12, 1871, the appellant, Shaver, loaned C. F. Morgan $500, and took a mortgage on the same premises, executed by Morgan and his wife, with full waiver of the homestead, which was recorded September 14, 1871. On December 22, 1871, Morgan and wife gave Williams a new mortgage on the premises to secure his old debt, which was duly acknowledged and recorded December 26, 1871; a release duly executed by Williams of the prior mortgage was filed for record with the last mortgage.

It is contended by appellant that, although his mortgage was executed and recorded subsequent to the one first given appellee, yet the release by appellee of the prior mortgage, and accepting the mortgage bearing date subsequent to the one held by him, give his mortgage the prior lien, and this we understand to be the principal question presented by the record. The second mortgage contains the following clause: “This mortgage is made to secure the identical indebtedness mentioned in the certain mortgage upon the above described lands made by said party of the first part to said party of the second part, bearing date March 17, 1868, and recorded in the recorder's office of the recorder of said McHenry county, in book 30 of mortgages, on page 338.” The truth of this statement is not controverted; no new note was taken, but the mortgage was given to secure the payment of the original note executed when the loan was first made. Nor does it appear that any substantial difference exists between the two mortgages. The rights and powers conferred by the two are similar in their character. While the right of dower had not been waived by the wife of the mortgagor in the first mortgage at the time it was executed, this defect had been cured, as appears by the certificate of acknowledgment subsequently obtained. The only difference we perceive in the two mortgages is, the first one did not provide that the whole of the principal debt should become due on the failure to pay interest, while the latter contained that provision. Where a party acquires a deed of lands, upon which he holds an incumbrance by mortgage or otherwise, and the question arises whether the incumbrance is discharged by the conveyance, the intention of the party at the time the deed was obtained will, in a court of equity, be considered the controlling consideration. Campbell v. Carter, 14 Ill. 286; Richardson v. Hockenhull, 85 Id. 124.

If that principle should be applied here, and we perceive no reason why it should not be, the facts surrounding the transaction all point to the conclusion that it was not the intention of the complainant to lose his original lien. The recitation in the mortgage that it was given to secure the identical indebtedness named in the other mortgage, the fact that the original note was not given up and a new one taken, in connection with the other fact that the release of the old mortgage and filing for record of the other one was done at the same time and as one transaction, all indicate that complainant had no intention whatever to give up his original lien on the mortgaged property. This case, in its facts, is similar to Christie v. Hale, 46 Ill. 117, and the rule there announced must control here. In that case Ball gave Hale a mortgage on real estate to secure certain indebtedness, which was, in form, a...