Tiernan v. Hinman

• Decision Date: 30 June 1855
• Citation: 6 Peck 400,16 Ill. 400,1855 WL 5452
• Parties: MICHAEL TIERNANv.JOHN E. HINMAN.
• Court: Illinois Supreme Court

16 Ill. 400
1855 WL 5452 (Ill.)
6 Peck (IL) 400

MICHAEL TIERNAN
v.
JOHN E. HINMAN.

Supreme Court of Illinois.

June Term, 1855.

[16 Ill. 401]

THE decree in this case was entered at December term, 1854, of the La Salle Circuit Court, LELAND, Judge, presiding. The facts of the case are stated in the opinion.

C. BECKWITH and GLOVER, and COOK, for Appellant.HOLLISTER and CAVARLY, for Appellee.

SKINNER, J.

This was a bill for injunction, filed in the La Salle circuit court, on the seventh day of September, 1854, by Tiernan against Hinman. The injunction was to restrain Hinman from selling certain premises in La Salle county, Illinois, under a mortgage deed of the same, executed by one Easton to Hinman, and containing a power to sell. The injunction was allowed by a judge in vacation. At the December term of the La Salle circuit court, the injunction was dissolved and the bill dismissed. Tiernan appealed to this court, and assigns for error the decree dissolving the injunction and dismissing the bill.

The record is very voluminous and only such portions of it will be stated as are material to the point decided in this opinion.

On the first day of July, 1851, Easton executed to Hinman the deed of mortgage.

The mortgage provides for the payment by Easton to Hinman, at the office of the clerk of the circuit court of La Salle county, of $400 on the first day of July, 1853; $850 on the first day of July, 1854; $751.50 on the first day of July, 1855; and the same sum annually thereafter for the years 1856, 1857, 1858 and 1859, without interest. The mortgage deed contains a proviso, that if the money and each installment thereof should not be paid when the same and each of them should become payable, that then, the whole moneys in said mortgage mentioned, and every installment thereof, should immediately become due; and that thereupon said Hinman might proceed to sell the mortgaged premises to pay the whole amount. After the execution and recording of the mortgage deed, Tiernan purchased the equity of redemption, under Easton. Hinman lived in Utica, New York, and Tiernan in Chicago, Illinois. A correspondence between them, concerning the mortgage debt, took place, and was continued from time to time, up to July, 1854.

The installments of 1852 and 1853 were paid by drafts, forwarded by Tiernan to Hinman, and were accepted, though not paid, at the precise times due. At the time the installment of

[16 Ill. 402]

1854 became due, the cholera prevailed in Chicago, and business, to...