Walters v. Defenbaugh
| Decision Date | 30 September 1878 |
| Parties | ALLEN WALTERSv.ISAAC DEFENBAUGH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. N. J. PILLSBURY, Judge, presiding.
Messrs. BLANCHARD & BLANCHARD, and Mr. H. N. RYON, for the appellant.
This was a bill in chancery, filed by appellant against Isaac Defenbaugh, the National Bank of Pontiac, the sheriff of Livingston county and others, praying an injunction to stay the sale of the north-east quarter of section 22, town 30, range 3 east of the third principal meridian, under and by virtue of an execution in the hands of said sheriff. A temporary injunction was granted by the master in chancery. At the October term, 1876, of the Livingston circuit court, an answer was filed to said bill, and a motion entered to dissolve the injunction, and, thereupon, the injunction was dissolved and the bill dismissed at the costs of appellant.
The bill, answer and affidavits read on the hearing of the motion show the following state of facts:
Franklin D. Sweetser and Henry Stanchfield were the owners in fee of said north-east quarter of section 22, and executed a mortgage upon the same to one Hopgood to secure the payment of $2300. Thereafter, in October, 1871, said Sweetser and Stanchfield sold and conveyed said land to Isaac Defenbaugh for $6400. Said Defenbaugh agreed to pay the Hopgood mortgage as so much of the purchase money, and, as security for the remainder of the purchase money, executed to said Sweetser notes for $3000, and gave a second mortgage upon the land to secure the payment thereof. The execution of said deed and second mortgage were contemporaneous acts. Defenbaugh went into the actual possession of the land, and remained in possession until January, 1876. August 10, 1875, the National Bank of Pontiac recovered a judgment in the circuit court of Livingston county against said Defenbaugh and others for $1750.08, on which judgment an execution was duly issued the same day, and afterwards returned no property found.
It is claimed by appellant that no portion of the purchase money of the land was ever paid by Defenbaugh. On the 14th day of October, 1875, by agreement between Sweetser and Defenbaugh, Defenbaugh re-conveyed said land to Sweetser in full payment of the purchase money aforesaid, and, on the same day, Sweetser executed and placed upon record a release of said second mortgage. Sweetser also paid off or purchased the Hopgood mortgage. On the 21st day of October, 1875, Sweetser sold and conveyed said land to appellant, and received from him notes for $4400, for the purchase money of said land, and a mortgage upon the land to secure their payment.
Afterwards, an alias execution was issued on the aforesaid...
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