Stephens v. Ill. Mut. Fire Ins. Co..
| Decision Date | 31 January 1867 |
| Citation | 1867 WL 5036,43 Ill. 327 |
| Parties | CHARLES C. STEPHENSv.ILLINOIS MUTUAL FIRE INSURANCE COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Hancock county.
The facts in this case are fully stated in the opinion.
Mr. N. BUSHNELL, for the plaintiff in error.
Mr. H. W. BILLINGS, for the defendant in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:
This was an action brought by Stephens, against the Illinois Mutual Insurance company upon the following state of facts: On the 25th of June, 1858, the firm of Banks, Bell & Co., being the owners of certain mill property, executed a mortgage thereon for $3,400, to a firm called Gaylord, Son & Co. On the 9th of November, 1859, Banks, Bell & Co. procured from the Illinois Mutual Fire Insurance company, a policy of insurance on the mill and fixtures, for the sum of $5,000, expiring November 9th, 1865. On the 8th of December, 1860, Banks, Bell & Co. sold and conveyed the premises to the plaintiff, Stephens, and with the assent of the insurance company, assigned to him the policy. In May, 1861, Gaylord, Son & Co. commenced a suit to foreclose their mortgage, making Banks, Bell & Co., and Stephens, parties defendant. On the 3d of June, 1862, a decree was rendered for the sale of the premises, and on the 2d of August, 1862, they were sold at public auction for $4,468, and bid in by the agent of Gaylord, Son & Co., the bid being applied on the decree. On the 10th of October, 1863, fourteen months and eight days after the sale, the mill and fixtures were destroyed by fire. This suit is brought by Stephens to recover the insurance.
There is no controversy about the facts, and the only question presented by counsel for our decision is, whether the interest of the plaintiff in the premises was so far divested by the sale, under the decree of foreclosure, that he incurred no loss from the fire, and is therefore entitled to no indemnity.
In order to determine this, we must advert to another fact in the case, upon which exclusively we base our decision. It appears that two of the members of the firm of Banks, Bell & Co. filed answers to the bill of foreclosure, in which they set up a partial failure of consideration in the notes secured by the mortgage, and that on the 3d of June, 1862, the parties compromised the litigation by an agreement, that the complainants should take a decree for the amount due on the face of their notes, and that in consideration thereof, the defendants should have two years from the date of sale in which to make redemption.
This agreement was reduced to writing and filed among the papers in the case, and thereupon, and on the same day, a decree was entered. It is true, this decree directs the special commissioner to make a deed if the premises are not redeemed within the statutory period of fifteen months. If third persons, for a valuable consideration, and without notice, had acquired title under the decree within the two years, their rights would doubtless have been governed by it, without reference to this agreement. But the premises were bid in at the sale by the agent of the complainants, and transferred to them, and as against them the decree can not be considered so far to merge the agreement as to render it inoperative. It is in proof by the counsel for the complainants in that case, who was also the special commissioner for making the sale, that the agreement and decree were all one transaction, one being the consideration for the other, as indeed appears by the face of the agreement itself. Why the decree gave only fifteen months for redemption, after two years had been agreed upon, does not appear, but it may well have been from apprehension of possible peril to the title, or of complication with other judgment creditors, if the decree on its face departed from the statutory period of redemption. There is, therefore,...
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