Whipple v. Crocker

• Decision Date: 28 February 1880
• Citation: 6 Bradw. 133,6 Ill.App. 133
• Parties: PERLEY B. WHIPPLEv.CHARLOTTE H. CROCKER, Adm'x, etc.
• Court: United States Appellate Court of Illinois

6 Ill.App. 133

6 Bradw. 133

PERLEY B. WHIPPLE

v.CHARLOTTE H. CROCKER, Adm'x, etc.

Appellate Court of Illinois, Fourth District.

February Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 2, 1880.

Messrs. WISE & DAVIS, for appellant; as to the right of a debtor to direct how payments shall be applied, cited Arnold v. Johnson, 1 Scam. 196; McFarland v. Lewis, 2 Scam. 345, Bayley v. Wynkoop, 5 Gilm. 449; Jackson v. Bailey, 12 Ill. 159; Heintz v. Cahn, 29 Ill. 308; Sprague v. Hazenwinkle, 53 Ill. 419; Hare v. Stegall, 60 Ill. 380; Bonnell v. Wilder, 67 Ill. 327.

If one be a mortgage debt and the other a simple account, the mortgage debt will be preferred: Pattison v. Hall, 9 Cow. 747; Dorsey v. Gasaway, 2 Har. & J. 402; Gwinn v. Whittaker, 1 Har. & J. 754; Robinson v. Doolittle, 12 Vt. 246; Anon. 12 Mod. 559.

Payment to an executor who has obtained probate of a will, discharges the debtor notwithstanding the probate is afterwards set aside: Bradford v. Benedict, 3 Wash. C. C. 122; Emery v. Hildreth, 2 Gray, 231; Allen v. Dundas, 3 Durn. & E. 125; Bac. Abr. 13; Kittridge v. Folsom, 8 N. H. 108; Stone v. Peasley, 28 Vt. 720; Morgan v. Dodge, 44 N. H. 261; Belden v. Meeker, 47 N. H. 307; Parham v. Moran, 4 How. 717.

Mr. HENRY S. BAKER, for appellee.

CASEY, J.

This was a proceeding in equity to foreclose a mortgage. The allegations in the bill are that on the 18th day of March, A. D. 1863, Perley B. Whipple (the plaintiff in error) was indebted to one Josiah Whipple in the sum of $1,500, and on the same day made and delivered to the said Josiah Whipple his promissory note for said amount, payable two years after the date thereof, with interest at the rate of 10 per cent. per annum, payable annually; that the said Perley B. Whipple also on the same day executed, acknowledged and delivered to the said Josiah Whipple a deed of mortgage of certain real estate therein described, to secure the payment of said note; that on the said 18th day of March, 1863, the said Josiah Whipple assigned and delivered the said note and mortgage to Arba Nelson; that the said Nelson died without issue or descendants on the 6th day of February, A. D. 1871, leaving complainant (defendant in error) his widow him surviving; that afterwards, in 1871, what purported to be the last will and testament of the said Arba Nelson, was admitted to probate in the County Court of Madison county, Ills.; that by said paper the said Perley B. Whipple and one John E. Hayner were made executors, and as such executors took entire possession of the personal estate of the said Arba Nelson; that as such executors they obtained possession of the said note and mortgage; and while so in their hands, payments were improperly endorsed on said note; that after protracted litigation the Supreme Court at its June term A. D. 1874, affirmed the judgment of the circuit court, setting aside and declaring void the pretended will of the said Arba Nelson; that afterward the defendant in error was, by the County Court of Madison county, appointed administratrix of the said Arba Nelson's estate; that the said Perley B. Whipple has not paid the principal or interest due on said note. Usual prayer for a foreclosure; the answer of defendant under oath being waived. Copies of the note and mortgage are filed with the bill. Summons was issued returnable to the March Term of the Madison Circuit Court, A. D. 1876.

On the 26th of July, A. D. 1876 the defendants file their answer to complainant's bill, admitting the indebtedness to Josiah Whipple; the making of the note and mortgage; that the note was assigned to Arba Nelson; that the paper purporting to be the will was admitted to probate; that letters testamentary were issued to Perley B. Whipple and John E. Haynes; that as such executors they took possession of the personal estate, including the note and mortgage; but denies that payments were improperly endorsed; and shows the paper purporting to be the will as aforesaid contained this clause. “I give to Perley B. Whipple, the mortgage debt I hold on his dwelling house in Middle Alton upon condition he pay to my executors the sum of $1,000.” That while they were acting as such executors, Whipple tendered to his co-executor John E. Haynes, $1,000.00 in full payment of said note and mortgage; and that the said Haynes as such executor accepted the same, and delivered the note and mortgage to said Whipple, satisfied in full. The answer admits that the will was set aside as charged; that complainant (defendant in error), took out letters of administration; that in turning over to her the property that came into their hands, as such executors, she demanded the said note and mortgage; that the said Whipple and Haynes averred at the time that they were paid; that Whipple held them individually, and they were his own; but that complainant insisted on the note and mortgage being delivered to her, and the said Whipple, so as not to prevent a settlement of the entire affairs in their hands and obtain their discharge, delivered the said note and mortgage to her, insisting that they were paid, and that he would resist the further payment.

Replications were filed on the 27th of December, A. D. 1876. An amendment to the bill was filed showing that on June first, 1871, a payment of $447.05 was endorsed on the note; that when Arba Nelson died he owed P. B. Whipple & Co. the sum of $447.05, for goods, etc.; that after his death the said Perley B. Whipple, acting as executor, caused the said Haynes, his co-executor, to endorse said claim of $447.05 as a credit on the said note for $1,500; that the said P. B. Whipple & Co. were at the same time indebted to the said Nelson in the sum of $975 and interest thereon, for which the said firm had made and delivered to the said Nelson three promissory notes; that the said firm was at the time of Nelson's death, and is still, insolvent; and that none of the said notes are secured. An amendment to the answer was filed March 17, 1879. The amendment shows that after the said will was set aside the said executors rendered to complainant a full account of all their acts in the premises, but that they would not agree with complainant that a final settlement was had with her by which they agreed to pay her a balance of $18,000 in full of everything except the individual notes of said Nelson in their hands. That it was distinctly agreed that the settlement included the said note and mortgage, and that complainant...