Wilhelm v. Schmidt

• Decision Date: 30 September 1876
• Citation: 1876 WL 10468,84 Ill. 183
• Parties: NICHOLAS WILHELMv.KASPAR G. SCHMIDT et al.
• Court: Illinois Supreme Court

84 Ill. 183

1876 WL 10468 (Ill.)

NICHOLAS WILHELM

v.KASPAR G. SCHMIDT et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon W. W. FARWELL, Judge, presiding.

Messrs. HARDING, NISSEN & BARNUM, for the appellant.

Messrs. LEAKE & VOCKE, for the appellees.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

Krewer and his wife, by warranty deed dated June 13, 1874, conveyed to Schmidt and Glade a part of lot 139, in Butterfield's addition to Chicago, subject to an incumbrance by way of trust deed, made by Krewer and wife September 7, 1870, to one Troost, as trustee, to secure the payment of Krewer's promissory note, of even date therewith, for $800, to Nicholas Wilhelm, payable two years after its date, with ten per cent per annum interest, payable annually.

Troost having, on the 22d day of September, 1874, advertised to sell the premises under the trust deed, for the satisfaction of the amount due on the note, Schmidt and Glade, on the 30th day of September, 1874, filed their bill in chancery to enjoin the sale, the bill setting up, that prior to the date of the conveyance from Krewer and wife to the complainants, Krewer had paid to Wilhelm $230 for interest accrued on the note, leaving but the sum of $890 due thereon, which sum had been tendered to Wilhelm and he refused to accept the same. The cause was heard upon pleadings and proofs, a decree passed in favor of the complainants, enjoining the sale, and this appeal was taken by defendant Wilhelm to reverse the decree.

Appellant admits the payment, by Krewer, of $227, but alleges it was on other indebtedness.

Krewer testifies, that in the summer of 1872, (he could not state whether it was in August or September,) he paid Wilhelm $200 on account of interest on the note, and afterward paid him $35.

Wilhelm admits the payment of that sum of $200, but testifies that it was on the 20th or 23d of October, 1872, and was on other indebtedness which Krewer was owing him at the time, and admits the payment, afterward, of $27 on such other indebtedness.

The lot had been sold on the 15th of May, 1871, at city tax sale, for non-payment of a city assessment, and one Forsyth held the tax sale certificate. Krewer wanted this taken up or to have the lot redeemed, but not having the money, he applied to Wilhelm to do it for him. Wilhelm borrowed the money for one year, at interest, $166, and paid it to Forsyth in redemption of the lot from the tax sale, on the 11th of July, 1871, taking Forsyth's receipt for it, and a surrender of the tax sale certificate. Wilhelm testifies that the $200 was paid on account of this tax matter, and that Krewer wanted the receipt, but he did not have the receipt with him at the time; that the matter rested until September 8th, 1873, as appears by the indorsement on the back of the Forsyth receipt which was surrendered up to Krewer, when this tax matter was finally settled between the parties. The city had paid back some $46 of the assessment, and the difference between that sum and the amount advanced by Wilhelm, with interest, amounting to some $117, was paid over to Wilhelm by Krewer, 8th September, 1873, nothing further being said by either about the $200. Wilhelm testifies that he had applied the money on $300 which he lent to Krewer on the 11th of February, 1871. There is no evidence as to the application of the $200 at the time it was paid, besides that of the parties. That is directly contradictory, the evidence of the one neutralizing that of the other.

It can not be said, then, to appear that the debtor, at the time of the payment, directed its application. If he did not, it would be left with the creditor to make the application as he pleased. But it may be equally said, that it does not here appear that the creditor, either, made the application. In which case, of neither debtor nor creditor applying the payment, the application devolves on the court, which will make such appropriation as is reasonable or equitable. At the time of the payment of the $200, Wilhelm testifies that Krewer was indebted to him in three several sums, of $300 lent February 11, 1871; $50 advanced for payment of a sewer in September, 1870; and $50 advanced shortly afterward to pay for a pigeon-hole table, without any time of payment fixed for either.

The controversy in the case chiefly respects this sum of $300. Appellees contend that it was lent to the wife of Krewer, and not to Krewer himself. The circumstances were these:

Krewer's father had formerly owned the lot in question, while this son occupied the same, and had erected thereon a house in which he kept a saloon, and on which he had given a chattel mortgage before he (the son) acquired title to the land.

In February, 1871, the chattel mortgage on Krewer's house maturing, and Krewer failing to pay the amount thereby secured, the holder proceeded to foreclose the same by sale on the 11th of February, 1871. It does not appear that there were any bidders at the sale except Mrs. Krewer, who bid $300, and to whom the house was struck off for that price, but she had no money to make good her bid.

After waiting an hour or two the officer who had made the sale got impatient and was about to sell the house over again, when Wilhelm, who had been out and around making exertions to raise the money, returned, having borrowed it himself on...