Winchell v. Edwards

• Decision Date: 30 September 1870
• Citation: 57 Ill. 41,1870 WL 6578
• Parties: MILO WINCHELL et al.v.CARRIE EDWARDS et al.
• Court: Illinois Supreme Court

57 Ill. 41

1870 WL 6578 (Ill.)

MILO WINCHELL et al.

v.CARRIE EDWARDS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The general subject matter of this controversy is, lot No. two, block fifty-one, School Section Addition to Chicago, situate upon the corner of Canal and Adams streets in said city, and being about sixty-four feet upon Canal and one hundred feet upon Adams street. The particular subject matter is the south thirty-three feet, of the sixty-four fronting upon Canal.

It appears that on the first of April, 1844, John M. Edwards and Edwin Edwards, being seized in fee of said lot two, borrowed three hundred dollars of one Slocum, for which they gave their note payable in three years, with interest at the rate of twelve per cent per annum, and a mortgage upon said lot two, which was duly executed and filed for record the same day.

On the 28th of June, 1844, J. M. and Edwin Edwards conveyed said south thirty-three feet to one Wilcox, who, on the 30th of September, 1845, reconveyed the same to John M. Edwards. In January, 1845, J. M. and E. Edwards sold and conveyed, for the consideration of two hundred dollars, fifty-nine feet on Adams street, and off the west end of said lot two, to one Henry McGraw, who soon after took possession, built upon and occupied the same. That parcel was released from the mortgage. That on the 2d of December, 1847, John M. and wife conveyed to Edwin Edwards the undivided half of the north half of said lot two; that on the 2d of December, 1847, said John M. and wife, by warranty deed, for the consideration of three hundred and fifty dollars, conveyed to Charles M. Edwards the south thirty-three feet in question, subject to the Slocum mortgage, but which deed Charles M. testifies was only as security. On the 19th of October, 1848, Slocum, by an assignment under seal, and reciting the consideration of two hundred and thirty-six dollars, assigned, transferred, and set over the Edwards mortgage to him, to Milo Winchell, and also endorsed the note to him. On the 3d of November, 1848, a writ of scire facias was sued out of the Cook county circuit court, in the name of Slocum for the use of Winchell, to foreclose said mortgage. John M. and Edwin Edwards were parties defendant. It was served on them on the 8th, and, making no defence, their default and judgment were entered on the 22d of the same month, for four hundred and sixty-seven dollars and costs; the premises ordered to be sold, and execution to issue. On the 7th of December, 1848, the execution was issued, and on December 11th levy made. On the 11th of April, 1849, the premises were sold under the execution, and bid in by Winchell for the amount of the judgment.

The sheriff issued the certificate of sale to Winchell, describing the premises as lot two, block fifty-one, School Section Addition to Chicago, except fifty-nine feet on Adams street. The premises not having been redeemed within the fifteen months, the sheriff, on the 12th of October, 1850, executed a deed to Winchell.

It appears that John M. Edwards was prcsent at the sale, and fully cognizant of all the proceedings. Without taking any steps to question their regularity, he left in the early part of December, 1851, to go to California, and his family quit possession. On the 26th of November, 1851, Winchell leased the south half of the house on said lot two to appellant Doolittle, who soon after went into possession, and on the 7th of June, 1852, Winchell sold, and by deed executed by him and wife, conveyed the south thirty-three feet to Doolittle for the consideration of five hundred dollars, he paying three hundred dollars cash, and giving his note for two hundred dollars, payable in one year, which was paid.

It was stipulated by appellants' counsel, in the court below, that John M. Edwards died in February, 1852. It appears that at the time of his death, appellees were small children, and are his only heirs at law. This bill was filed by them November 21st, 1867, alleging that the money advanced by Winchell to Slocum, to procure the assignment of the mortgage, was a mere loan by Winchell to J. M. and Edwin Edwards, and that he took the assignment of the mortgage and the legal title under the foreclosure, as security for the money so advanced; that they had previously paid Slocum two hundred dollars on the note, which was not endorsed, and that the amount actually due was only about one hundred and sixty dollars; that on December 1st, 1851, John M. Edwards, being about to leave this State for California, paid to Winchell the sum of one hundred and fifty dollars, in full for the amount due him under said mortgage to said Slocum, for that part of the said premises which had been conveyed to him in security, and that on that occasion Winchell gave to said Edwards a receipt to that effect, which receipt is now ready to be produced and proved as the court shall direct, and a copy whereof is as follows, namely:

“CHICAGO, Dec. 1st, 1851.

Received of John M. Edwards one hundred and fifty dollars for his half of the mortgage which I hold of that part of lot two, block fifty-one, School Section Addition to Chicago, bounded as follows: Beginning at southeast corner of said lot and running west one hundred feet, thence north thirty-three feet, thence east one hundred feet, thence south thirty-three feet to the place of beginning.

MILO WINCHELL.”

The bill then alleges that thereafter Winchell merely held the title to said premises in trust for John M. Edwards, and that he thereafter fraudulently sold and conveyed them to Doolittle, to defraud complainants, for the pretended consideration of five hundred dollars, which was not in fact paid, and that Doolittle had notice of the matters alleged.

The bill then alleges, that if Winchell did not loan the money and take the title as security, then, that the sale and proceedings should be set aside, for want of proper notice by the sheriff, for misdescription of the property, and because it was not sold in parcels. The appellants answered separately and fully; Winchell denying the loan, or taking the assignment of mortgage, or the title under the sale, as security or in trust; avers that he paid the consideration out of his own funds and for his own benefit; denies that J. M. Edwards ever paid him the one hundred and fifty dollars, or any part of it, as alleged, or that he (Winchell) ever executed the receipt set out in the bill, or authorized any one to execute it for him; sets up the sale made to Doolittle as made upon a good and valuable consideration paid, and that Doolittle was advised by J. M. Edwards to make the purchase, and that it was made without any notice of any adverse rights; also laches.

Doolittle makes a...