Stanley v. Valentine

• Citation: 79 Ill. 544,1875 WL 8684
• Parties: BENJAMIN F. STANLEYv.ELIZABETH D. VALENTINE et al.
• Decision Date: 30 September 1875
• Court: Supreme Court of Illinois

79 Ill. 544

1875 WL 8684 (Ill.)

BENJAMIN F. STANLEY

v.ELIZABETH D. VALENTINE et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

Messrs. PADDOCK & IDE, for the appellant.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the 4th day of November, 1872, appellant received from Elizabeth Valentine a mortgage on certain real estate in North Evanston, in Cook county, to secure the purchase money for the property, and for which she had given her six notes, for different amounts, and payable on various dates, and amounting in the aggregate to $8500, and bearing ten per cent interest per annum. The mortgage was duly recorded on the 26th of February, 1873. About the 10th of March, 1873, she being desirous of raising money by loan, and to secure the same by deed of trust on the property, for the purpose of paying one of the notes she had given for the purchase money, of $3850, applied to Benjamin E. Gallup for a loan of $4000, who consented to make it if her title should prove satisfactory, except a prior mortgage and that given to appellant, and that appellant, on being paid the $3850, and being thereby enabled to pay the prior mortgage, would release his mortgage and take from her a new mortgage, subject to a mortgage to be given to Gallup, to secure the balance of his purchase money on the lots.

At the time this arrangement was agreed upon, appellant was on the eve of starting to New York, to be absent some time, and to enable the arrangement with Gallup to be carried out, he executed a release of his mortgage, and delivered it to Gallup, to be held in escrow until the transaction should be fully consummated, and then delivered to Mrs. Valentine. Appellant having gone East, by some accident or mistake the release was taken from Gallup's office to the recorder's office, and there filed for record, which appellee learned for the first time on his return from New York. No loan was ever made by Gallup to Mrs. Valentine.

On the 17th day of February, 1873, Thomas Cogswell and others obtained a judgment in the Superior Court of Cook county against Mrs. Valentine, for $500.18 and costs. And the same parties recovered another judgment against her, in the same court, on the 30th day of April, 1873, for $499.67 and costs.

The judgment creditors sued out executions, and placed them in the hands of the sheriff, who levied on these lots and advertised them for sale on the 31st of May, 1873. Appellant, thereupon, filed this bill to have the release canceled, and the judgment creditors enjoined from selling the lots, unless it be subject to his mortgage. A temporary injunction was granted, but, on a hearing, the court below dissolved it, and dismissed the bill, and complainant appeals.

There is no pretense that Gallup had any, the slightest authority to deliver the deed of release until the condition was performed upon which it was placed in his hands, nor is it claimed that those conditions were ever performed, or that the release was rightfully filed with the recorder and spread upon the records. That was an accident or mistake, without either appellant or Gallup intending that it should be done, nor was there any delivery to Mrs. Valentine. It never went into her possession or came under her control, nor was it delivered to the recorder or any other person for her. As to her, then, the release in nowise changed or affected her rights, and was, so far as the apparent release of her mortgage was concerned, absolutely void, and was such a cloud on appellant's title as in equity required it to be canceled and she restrained from asserting any rights under it.

It is true, there is no specific prayer that it be canceled as to her, but the bill contains the general prayer for relief. No rule of chancery practice is more familiar than that other than the specific relief prayed will be granted under the general prayer, when consistent with the facts stated in the bill. Now, such relief in this case is perfectly consistent with and is not repugnant to or variant from the facts alleged and proved, and we presume no one would say the prayer would be defective had it been specifically made in this bill. It then follows, that it was error in the court below not to have retained the bill, and granted at least that relief.

But it is urged, that by filing the release for record the judgment creditors acquired a superior lien to that of appellant; that the recording of the release, although by accident or mistake, let in their subsisting judgments as a lien that postpones appellant's...