Stevens v. Shannahan

• Decision Date: 20 January 1896
• Citation: 43 N.E. 350,160 Ill. 330
• Parties: STEVENS et al. v. SHANNAHAN.
• Court: Illinois Supreme Court

160 Ill. 330

43 N.E. 350

STEVENS et al.

v.SHANNAHAN.¹

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from circuit court, Will county; Dorrance Dibell, Judge.

Bill by Bridget Shannahan against Lydia Stevens, as administratrix of the estate of Pelick Stevens, deceased, to enjoin the sale of land under a mortgage, and for an accounting. Complainant having died pending the action, an amended and supplemental bill and amendments thereto were filed by Patrick Shannahan, T. Patrick Shannahan, and William J. Shannahan, in which Henry K. Stevens, Jerome P. Stevens, Henry T. Stevens, and others were joined with the original defendant as parties defendant. From the decree, defendants Henry K. Stevens and Jerome P. Stevens appeal, and plaintiff Patrick Shannahan assigns cross errors. Reversed on defendants' appeal.

For prior report, see Shannahan v. Stevens, 28 N. E. 804.

George S. House (C. W. Brown, of counsel), for appellants.

P. C. Haley, C. A. Hill, and Egbert Phelps, for appellee.

BAKER, J.

The facts in this large record are complex. We shall only refer to such as are deemed necessary to an understanding of the view that we take of the case. On and prior to October 6, 1873, Patrick Shannahan, the appellee, was the owner in fee of certain real estate in the city of Joliet, and on that day he and his wife, Bridget Shannahan, executed their note of that date, payable five years after date, to Pelick Stevens or order, for $3,500, with interest at 10 Per cent. per annum, payable annually, and secured the note by a mortgage of same date, with power of sale, on said real estate. By deed of March 20, 1877, said Patrick, his wife joining with him, conveyed said real estate to their son, T. Patrick Shannahan; and immediately thereafter, and on the same day, said T. Patrick Shannahan deeded the same to his mother, Bridget Shannahan. On December 31, 1877, Bridget Shannahan and Patrick Shannahan executed their joint note of said latter date, payable 10 years after date, to said Pelick Stevens or order, for $2,665, with 10 per cent. interest per annum, payable annually, and on the same day secured the same by a second mortgage, with power of sale, on said real estate. Said second mortgage contained this provision: ‘And it being also expressly agreed between the parties hereto that, should any default be made in the payment of said interest, or any part thereof, or any part of the principal, on the day when the same becomes due and payable as herein expressed, and should the same, or any part thereof, remain unpaid and in arrears for the space of fifteen days, the aforesaid principal sum of $2,665, with all arrearages of interest thereon, shall, at the option of the said party of the second part, heirs, executors, administrators, or assigns, become and be due and payable immediately, anything herein contained to the contrary thereof notwithstanding.’ Said Pelick Stevens was a resident and citizen of Kalamazoo county, in the state of Michigan, and in each of the mortgage deeds he was designated as of that county and state. He died there, intestate, on or about August 14, 1881, and forthwith his widow, Lydia Stevens, was by the probate court of said Kalamazoo county appointed administratrix of his estate, and she qualified as such under the laws of the state of Michigan. On May 1, 1882, the said Lydia Stevens, as such administratrix, advertised the real estate here inquestion for sale, under and by virtue of the power of sale contained in the mortgage bearing date December 31, 1877, and such sale was advertised to take place on Saturday, the 1st day of July, 1882. Thereupon, on June 29, 1882, Bridget Shannahan filed in the Will circuit court the original bill herein, and secured a preliminary injunction enjoining such sale. The bill was for an accounting concerning the indebtedness secured by the mortgage, and the several transactions connected with the same. The bill claimed certain credits, and that there was usury in said transactions. It, however, made this admission: ‘That there is now due and owing to said defendant from complainant, upon said mortgage, the sum of $2,721.89, allowing six per cent. per annum upon the amount of money received by complainant thereon, which sum complainant now tenders and is ready to pay as directed by this honorable court.’ The sole defendant to the original bill, Lydia Stevens, administratrix, filed an answer thereto, and such proceedings were then had as that the temporary injunction was dissolved, but no final disposition otherwise made of the bill.

After the dissolution of the injunction, Lydia Stevens, as such administratrix, again advertised said real estate for sale under and by virtue of the power of sale in said mortgage of December 31, 1877, subject, however, to the prior mortgage thereon of October 6, 1873. On the 2d day of October, 1882, in pursuance of said advertisement, she offered the real estate for sale, and at the sale Jerome P. Stevens bid the sum of $4,000, and the said real estate was struck off and sold to him at that price, and said Lydia, as such administratrix, executed and delivered to him deeds therefor. Thereafter the tenants in possession of said real estate attorned to said Jerome P. Stevens as their landlord, and he, said Jerome, went into the actual possession of said real estate, claiming the same as owner. Afterwards, on February 12, 1884, Bridget Shannahan, for and in consideration of the sum of $300 to her paid by said Jerome P. Stevens, and for the further consideration of the settlement of whatever remaining indebtedness was due from her and of the still pending litigation, made a deed to said Jerome for said real estate, and said deed was duly recorded on February 15, 1884. As part and parcel of the transaction resulting in the execution of the deed last named, a stipulation was executed and delivered by said Bridget Shannahan, which stipulation was in the words and figures following:

‘State of Illinois, Will County-ss.: In Circuit Court, January Term, A. D. 1884. Bridget Shannahan vs. Lydia Stevens, Adm'x, etc. Bill and Injunction. It is hereby stipulated by the complainant in the above-entitled cause that a decree may be entered, by consent of parties, finding the equities of said cause for the defendant, and dismissing the bill upon such finding at complainant's cost, but without right of action on the part of defendant upon the injunction bond, in such case the sureties thereon to be discharged from all liability, the matters in controversy being fully settled.

‘Bridget her X mark. Shannahan.

‘C. W. Brown, Atty. for Deft.

‘Witnesses:

‘John Gleason.

‘J. P. Stevens.’

This stipulation was filed in the cause, and at the February term, 1884, of the circuit court, a decree was entered dismissing the bill of complaint in pursuance of the stipulation.

Jerome P. Stevens, claiming to be owner of the property, made valuable lasting, and permanent improvements thereon, at an expense of some $4,500, and he also paid to Lydia Stevens, administratrix, the money due on the prior mortgage and note of October 6, 1873, the amount so due and paid being $5,775; and a release of said prior mortgage was executed and delivered. Thereafter, Jerome P. Stevens, by deed of July 9, 1887, for a consideration of $16,000, conveyed the said real estate to his father, Henry K. Stevens, and the latter, by deed of July 20, 1887, conveyed said real estate to his son Henry T. Stevens, in consideration of love and affection and the sum of $5, and said Henry T. Stevens was thereupon let into the possession of the premises, and since then has continued to be, and now is, in possession of the same, by himself and tenants. In the meantime, at the same February term, 1884, of the circuit court that the decree was rendered dismissing the bill of complaint of Bridget Shannahan, but upon a later day of the term, a motion was entered by Patrick Shannahan, as husband and comortgagor of Bridget Shannahan, to set aside the decree of dismissal, and to allow him to intervene in the cause as a co-complainant. This motion was not submitted to the court until the May term, 1886, when it was denied. The ruling of the court in that behalf was affirmed in the appellate court, but was afterwards, on October 31, 1891, reversed by this court (Shannahan v. Stevens, 139 Ill. 428, 28 N. E. 804), and the cause remanded to the circuit court, with directions to set aside its decree of the February term, 1884.

It appears that shortly after the rendition of the decree of the February term, 1884, Bridget Shannahan departed this life. It also appears that after the remandment of the cause said decree was vacated, and that on January 28, 1892, at the January, 1892, term of the circuit court, Patrick Shannahan, T. Patrick Shannahan, and William J. Shannahan (the two latter being the sons and heirs at law of Bridget Shannahan, deceased), by leave of court filed in the cause their amended and supplemental bill, and at various times thereafter, by like leave of court, filed numerous amendments to their bill; and that Henry K. Stevens, Jerome P. Stevens, Henry T. Stevens, and other persons were joined with Lydia Stevens, administratrix, as parties defendant, and that the several defendants answered the amended and supplemental bill and the amendments thereto, and that there were replications to these answers.

The record shows that upon the issues formed by the pleadings as to the sanity of Bridget Shannahan at the time of the execution by her of the deed of February 12, 1884, and the stipulation for the dismissal of the original bill, the following propositions of fact were submitted by the court to a jury for trial, to wit: ‘First. Was the instrument referred to in the pleadings in this cause, purporting to be a deed of the premises in controversy from Bridget Shannahan to Jerome P. Stevens, the deed of the said Bridget Shannahan? Second. Was the stipulation in said pleadings referred to and set out the...