Taggart v. Blair

• Decision Date: 17 April 1905
• Citation: 74 N.E. 372,215 Ill. 339
• Parties: TAGGART v. BLAIR et al.
• Court: Illinois Supreme Court

215 Ill. 339

74 N.E. 372

TAGGART

v.BLAIR et al. ^*

Supreme Court of Illinois.

April 17, 1905.

Error to Circuit Court, Cook County; J. W. Mack, Judge.

Bill by Sarah E. Taggart against Chauncey J. Blair and another, as trustee. There was a decree for defendants, and plaintiff brings error. Affirmed.John C. Wilson and J. L. Le Bosky (Charles K. Ladd and William Prentiss, of counsel), for plaintiff in error.

Wilson, Moore & McIlvaine, for defendants in error.

This is a bill filed on January 14, 1902, by the plaintiff in error against Chauncey J. Blair and John C. Neely, trustee, to redeem certain premises from a foreclosure sale, in pursuance of an alleged verbal agreement for the extension of the time of redemption. Answers were filed by the defendants in error denying the existence of any agreement for redemption. The cause was referred to a master in chancery, who took testimony, and reported the same back, with his conclusions. One deposition was taken beyond the limits of the state, and considered by the master in making his report. The master, after reviewing the evidence, made a report finding that the allegations of the bill had not been proven by a preponderance of the evidence, and recommending that the bill be dismissed for want of equity at the cost of plaintiff in error. Objections were filed to the master's report, which were overruled by the master, and ordered to stand as exceptions to the report. Upon the hearing of the cause, the court overruled the exceptions to the master's report, and confirmed the same, and dismissed the bill of complaint for want of equity, at complainant's costs. The present writ of error is sued out for the purpose of reviewing said decree.

Some of the material facts in the original foreclosure suit are as follows: On February 1, 1896, plaintiff in error, Sarah E. Taggart, was indebted to defendant in error Blair, and on that date executed with her husband, Robert H. Taggart, a note for $33,000, due five years after date, and delivered the same to Blair, and, to secure said note, she, with her husband, executed to the defendant in error John C. Neely, as trustee, a trust deed dated February 11, 1896, conveying certain premises in Chicago, known as 6248, 6250, and 6252 Drexel avenue. On February 17, 1899, Blair and Neely filed their bill to foreclose said trust deed against plaintiff in error and her husband, default having been made in the payment of the interest on the note from August 1, 1897, to February 1, 1898, and in the payment of two subsequent installments of interest, covering the period from February 1, 1898, to February 1, 1899; and also default was made in the payment of taxes for the year 1897, and the premises were sold for taxes in 1898. Decree of sale was entered in the foreclosure suit, and the premises were sold by the master on June 8, 1899, at public auction, to defendant in error Blair, for the sum of $37,300, and a certificate of purchase was delivered to Blair. The sale was made in pursuance of a decree of foreclosure entered on May 11, 1899. On June 13, 1899, the master filed his report of sale, showing a deficiency of $290.90 remaining due to Blair, and thereupon a decree was entered for the amount of the deficiency. The 15 months allowed for redemption expired on September 9, 1900, and about that time Mr. Blair received a master's deed to the property. On April 21, 1899, on the motion of Blair, the court appointed one Edwin J. Fleming, Blair's private secretary, to act as receiver for the premises, and the receivership was continued after the approval of the sale. On January 26, 1900, plaintiff in error filed her petition, alleging that Fleming, as receiver, had collected $2,314.75 of rents from the premises, and offering to pay Blair $299.90 in full of the amount due upon the deficiency decree, and asked for the possession of the premises. This application to discharge the receiver was resisted by Blair, but on February 5, 1900, upon a hearing of the petition, it was ordered that Blair satisfy the deficiency decree upon the payment to him of $300.08, and that the receiver surrender to plaintiff in error the possession of the premises. Blair took an appeal from this order, and the Appellate Court dismissed his appeal.

MAGRUDER, J. (after stating the facts).

It is claimed on the part of the plaintiff in error that, before the time of redemption from the master's sale had expired, the defendant in error Blair agreed that, at any time after the sale by the master, plaintiff in error should have the right, upon paying the amount due the secured by the trust deed, with costs and interest, to redeem the premises from the sale, and that, upon the payment of the amount so due, Blair would release the trust deed. The question presented by the record is purely a question of fact, and that is whether any agreement to extend the time of redemption was made, or not. Robert H. Taggart, the husband of plaintiff in error, swears that on or about December, 1899, he went in companywith a man named Joseph C. Davidson to the Merchants' National Bank, of which Blair was president, and there had an interview, in which Blair is stated to have agreed that he would accept the amount due by the terms of the decree, and cancel the trust deed, at any time after the sale, or within a reasonable time after the sale. Taggart is confirmed in his statement in regard to the agreement by the testimony of Joseph C. Davidson. The testimony shows that Davidson was asked to accompany Taggart for the purpose of being a witness to what might be said by Blair. The testimony of the two witnesses, Taggart and Davidson, is all the evidence introduced by plaintiff in error in support of the alleged agreement. On the other hand, Blair swears most positively that he never made any agreement to extend the time of redemption, or to allow the plaintiff in error to pay the amount of the debt after the expiration of the statutory period of redemption. Blair is confirmed in his testimony by that of Edwin J. Fleming, his private secretary, and the receiver of the property in question. Blair at the time of the alleged interview was sitting at his desk in the bank. Taggart and Davidson were standing at the railing or counter; and Fleming swears that he was standing at the desk near Blair, and heard the conversation. It thus appears that two witnesses, Taggart and Davidson, swear to the agreement, and two witnesses, to wit, Blair and Fleming, swear that no such agreement was made. Blair and Taggart were both interested parties, but Davidson and Fleming had no pecuniary interest in the matter. None of these four witnesses were impeached. Upon this state of the evidence, the master found that the agreement to extend the time of redemption was not sustained by the preponderance of the evidence, and chancellor below confirmed the report of the master making this finding. After a careful examination of the evidence, we are not able to say that the decree of the court below was not correct. It cannot be said that the finding is contrary to the weight of the evidence.

No fault can be found with the law, as contended for by plaintiff in error. A mortgagee may by contract extend the period allowed by law for redemption, and a court of equity will enforce such agreement. Union Mutual Life Ins. Co. v. Kirchoff, 133 Ill. 368, 27 N. E. 91;Schoonhoven v. Pratt, 25 Ill. 457;Pensoneau v. Pulliam, 47 Ill. 58. And this is the rule even where the agreement for such extension of the time of redemption is a verbal one. Union Mutual Life Ins. Co. v. White, 106 Ill. 67;Reigard v. McNeil, 38 Ill. 400; Pensoneau v. Pulliam, supra. Here, however, under the law as thus existing and as thus contended for by the plaintiff in error, the question is whether Blair agreed or promised to do what he is alleged to have agreed or promised.

There are many circumstances which confirm the testimony of Blair and Fleming. The testimony of the witnesses...