Simpson v. Gardiner

• Decision Date: 03 February 1881
• Citation: 1881 WL 10406,97 Ill. 237
• Parties: ELIZA G. SIMPSONv.THOMAS GARDINER.
• Court: Illinois Supreme Court

97 Ill. 237

1881 WL 10406 (Ill.)

ELIZA G. SIMPSON

v.THOMAS GARDINER.

Supreme Court of Illinois.

Filed at Ottawa Feb. 3, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District; the Hon. N. J. PILLSBURY, presiding Justice, and the Hon. JOSEPH SIBLEY and Hon. EDWIN S. LELAND, Justices;--heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. J. MCROBERTS, Judge, presiding.

Mr. D. P. JONES, and Mr. L. W. BREWER, for the appellant:

A court of chancery will not reform a written instrument except upon clear and satisfactory proof of a mistake. Hunter, Admr. v. Bilyea et al. 30 Ill. 228; Shay v. Pettes et al. 35 Id. 360; Cleary v. Babcock, 41 Id. 271; Kuchenbeiser et al. v. Beckert et al. 41 Id. 172; Mills et al. v. Lockwood, 42 Id. 111; Miner v. Hess, 47 Id. 170; Emery v. Mohler, 69 Id. 221; Sutherland et al. v. Sutherland et al. Id. 481; Moore v. Munn et al. Id. 591; Palmer v. Converse, Id. 313; Wilson v. Byers et al. 77 Id. 76; Kerr on Fraud and Mistake, 422; 1 Story's Eq. Jur. sec. 152, et seq.; Fry on Specific Perf. of Cont. sec. 505.

Even though the bill of complaint was sufficient and supported by testimony that would warrant the reformation as to Geo. W. Simpson, if living, there remains the question as to whether the court has not erred in rendering the decree against appellant, barring her dower and homestead right, she having been a feme covert at the time the mortgage was executed. We think no such authority as was exercised exists in a court of chancery. Moulton et ux. v. Hurd, 20 Ill. 137; Martin et al. v. Hargardine, 46 Id. 322; Hutchings et al. v. Huggins, 59 Id. 29; The Board of Trustees, etc. v. Davison, et al. 65 Id. 124. A vendor, by taking other security for the payment of the purchase money, waives his right to a vendor's lien. Conover v. Warren et al. 1 Gilm. 498; Phelps v. Conover, 25 Ill. 309; Doolittle et al. v. Jenkins et al. 55 Id. 400; Boynton v. Champlin, 42 Id. 57; Kirkham et al. v. Boston, 67 Id. 599; Berger et al. v. Potter et al. 32 Id. 66; Warner v. Scott et al. 63 Id. 368; Moshier, Admr. v. Meek et al. 80 Id. 79.

There is another reason why the lien can not now be enforced, if the right to enforce it ever existed, viz: lapse of time. The evidence shows that the money was paid Ferguson on December 13, 1869. The bill in this case was not filed until December 29, 1876. More than seven years had elapsed before any effort was made whatever to collect the money claimed to be due. Appellee, all that time, relying upon his mortgage as security, must be held to have waived his lien, if he ever had one. Conover v. Warren, 1 Gilm. 498; Trustees, etc. v. Wright, 11 Ill. 603; Trustees, etc. v. Wright, 12 Id. 432.

Mr. G. S. ELDRIDGE, and Messrs. LELAND & GILBERT, for the appellee:

Upon the payment of a debt by a surety, he is entitled not only to the benefit of the collateral security, but also to the benefit of the debt, as represented by a bond or note. Jones on Mortgages, sec. 882; Ellsworth v. Lockwood, 42 N. Y. 89.

So, where a junior incumbrancer pays off a prior incumbrance, his right to be subrogated to the position of the prior mortgagee is not destroyed by reason of his taking from the mortgagor a new mortgage for the amount of both mortgages; and although the new mortgage be void on account of usury, by paying the prior mortgage he becomes entitled to a cession of the debt and a subrogation to all the rights of the mortgagee, and the mortgage, as against the mortgagor, is to be regarded as still existing. Jones on Mortgages, sec. 885; Harper v. Ely, 70 Ill. 581. Had Mrs. Ferguson kept the original mortgage, and allowed Gardiner to pay his share only, Simpson would have been bound to pay ten per cent interest, and it is difficult to see why the obligation should not remain the same when Gardiner has become the owner of the indebtedness. Certainly the law should not put a premium upon neglect of duty by placing Simpson in a better position by reason of his failure to meet his obligations.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The material facts of this case are, that Gardiner, and G. W. Simpson, now deceased, bought a tract of land, say 80 acres, at the price of $2800. They each paid $500 in cash. The land was conveyed to them, and they gave notes and a mortgage upon the land for $1800, to be paid in installments. Appellant, then the wife of G. W. Simpson, joined in the mortgage. After the notes for this balance of the purchase money all fell due, Gardiner paid them off, and the mortgage was released. Simpson, to secure Gardiner the repayment of the money thus paid out by Gardiner, gave Gardiner three promissory notes, each for $300, and he and his wife, the appellant, attempted to secure the same by a mortgage upon the interest of Simpson in the whole tract, and executed what they all supposed was such a mortgage. By a blunder of the scrivener who drew the mortgage, it was made to embrace only one-half of the south half of the tract. Simpson lived on the part of the south half of the tract, embracing some 12 acres. The rest of the land was occupied by a tenant, who paid rent to Gardiner, or to Gardiner and Simpson each a part. Simpson died, and the money for which these three notes, each for $300, were given remains unpaid.

This is a bill by Gardiner against the widow and heirs of Simpson for partition, and asking that the half of the land to be set off to them shall be charged with the $900 of purchase money and the interest, which Gardiner paid in excess of what was his share to pay. The circuit court granted the relief sought. On appeal the decree was affirmed by the Appellate Court, and the widow, Mrs. Eliza G. Simpson, appeals to this court.

...