| Ill. | Jun 19, 1901
delivered the opinion of the court:
The only question presented by this appeal is, do the transactions referred to in the foregoing statement of the case amount only to mortgages, or were they conditional sales, subject to be defeated in case appellants should exercise the privilege of re-purchase granted by the option contracts?
The cause was heard by the master, and his conclusions of fact were in favor of the contention of the appellee, and the circuit court, after a hearing on exceptions to his report, approved those conclusions. We have carefully examined the record, and think the conclusions of the master and chancellor are correct and fully authorized by the weight of the evidence.
It appears from the testimony of George V. Bacon, husband of appellant Charrie A. Bacon, who acted for his wife and Sarah L. Rogers in the negotiations with Mr. Lusk looking to the taking up of the Goudy mortgage by the latter, that he (Bacon) asked that the bank take a mortgage on the east half of the land to secure the payment to it of one-half of the amount necessary to buy the first mortgagee. This the bank declined to do, but insisted that quit-claim deeds be given. This would seem to clearly indicate, according to appellants’ own evidence, that the bank did not intend the transaction should be considered as a mortgagee, merely. Again, the bank, being the holder of a second mortgage on the west half of the property, might well desire to protect itself by buying in the first mortgage, but except for the purpose of protecting such second mortgage and curing any possible defect in the foreclosure of the first or Goudy mortgage there was no substantial reason why it should desire the quit-claim deeds. There were reasons, however, why the appellants should be willing to give the deeds and receive an option to re-purchase. At that time the Goudy mortgage was in process of foreclosure. In order to redeem from a foreclosure sale the owners of either half of the property would have, to pay the full amount of the foreclosure decree, which amounted to about $32,000, whereas by giving the deeds and taking the options to re-purchase, the owners of either half would have to pay less than one-half of the amount necessary to redeem their half, and under the original contract obtained a long'er time to re-purchase than the law would give them to redeem.
There is another aspect of the case which is conclusive against the contention of appellants. At the time of the giving of the quit-claim deeds, Charrie A. Bacon and Sarah L. Rogers were not indebted to appellee, nor did they become indebted to it, nor did they make any agreement to pay to it a single dollar. Appellee had no pecuniary claims whatever against either of them. Joseph K. Bacon and Charles P. Coleman were indebted to the bank in the sum of $20,000, but that indebtedness was canceled when the quit-claim deeds were given to Lusk by them, so that there was no indebtedness from either of them upon which to base a mortgage. It is well settled that it is essential to the creation and existence of a mortgage that there be some indebtedness to be secured thereby, or some obligation to pay money or perform some act or duty. When the debt is extinguished the mortgage becomes null and void. Rue v. Dole, 107 Ill. 275" date_filed="1883-05-10" court="Ill." case_name="Rue v. Dole">107 Ill. 275; Burgett v. Osborne, 172 id. 227.
We are clearly of the opinion that the court below committed no error in its decree in favor of appellee’s contention, and it will accordingly be affirmed.
Decree affirmed.