28 Ill. 149 | Ill. | 1862
In this case the complainants claim as the widow and heirs of Bernard Gaffney, deceased. He, on the 1st day of September, 1848, purchased the property, in litigation, of the commissioners of the Illinois and Michigan canal, for the sum of six hundred and twenty dollars. He, at the time of the purchase, paid one-fourth of the sum, and the interest in advance on the remainder for one year. He also gave his notes for the balance, in equal portions, payable in one, two and three years, with interest from date, and received a certificate of purchase, stating the facts, and that he would be entitled to a deed on the payment of the notes. On the 13th day of March, 1850, being indebted to Gurnee, Hayden & Co., Gaffney assigned this certificate to them, and, at the same time, gave them a quit-claim deed to the premises in question, and received from them an obligation that on his paying them the sum of $940.51, they would reconvey the premises to him.
Afterwards, on the 11th day of March, 1851, Jeremiah L. Brown became the assignee of the certificate of purchase from Gurnee, Hayden & Co., and took from them a quit-claim deed of their interest in the premises. The evidence shows that the assignment was made at the request of Gaffney.
By the arrangement between Gaffney and Gurnee, Hayden & Co., there can be no doubt that Gaffney became a mortgagor of his interest to them. This is too well settled to be controverted. And by the assignment of the certificate of purchase by Gurnee, Hayden & Co. to Brown, he assumed to the transaction the same attitude and acquired the same rights held by Gurnee, Hayden & Co., and nothing more, so far as the evidence in the record discloses. But it is insisted that Brown acquired Gaffney’s interest in the premises, divested of the right of redemption. That by a parol agreement between them, when the assignment was made to Brown, the right of redemption by Gaffney was extinguished, and that Brown acquired not the right of a mortgagee, but the absolute title, as a purchaser. The only evidence in the case tending to prove that such an arrangement was made, is that of Brown, who, having assigned his interest to his son, became a witness in the cause. He states, that it was in consideration of his furnishing to Gaffney the means of going to California. We are disposed to consider his evidence as though he was free from interest in this suit, and as a competent witness. But owing to the attitude he bears to the case, and the relationship he bears to the other plaintiff in error, we must receive his evidence with great caution. He is the assignee of Gurnee, Hayden & Co., and the assignor and father of the defendant below, now claiming title to the lands as his assignee; and in every stage of this controversy, whether in or out of court, he has taken an active, if not an interested part.
He testifies, that Gaffney relinquished his right of redemption in the premises, in consideration of the means furnished to enable him to go to California. The language employed by Gaffney is not given, but simply his conclusions of the legal effect of the transaction. It appears from this evidence, that the money and property advanced by him to Gaffney did not exceed in value three hundred dollars. That he received from Gaffney his notes for four hundred and seventy dollars. This would seem to be a loan by Brown to Gaffney. If a purchase, it may be asked, why take these notes ? or can we-suppose that Brown would demand, or that Gaffney in addition to these notes would surrender the right of redemption to the-home of his family, and all he possessed, for the sum of less than three hundred dollars? This would seem to be improbable, and that he should manifest such generosity to a man of wealth is still more improbable. But other witnesses testify that- the witness Brown stated to them, that he held the property subject to redemption. This is the substance of the testimony of Toe, George W. and William M. Eichardson. The evidence of these witnesses is irreconcilable with Brown’s testimony. They, so far as the record discloses, are disinterested. and their evidence overcomes, by a decided preponderance, that of Brown.
The conduct of Gaffney during the whole transaction, was snch as clearly indicated that he regarded Brown as a mortgagee and not the owner, nor can Brown’s conduct and declarations be reconciled with any other supposition. And when the equity rule—“ once a mortgage always a mortgage” —is applied, nothing but clear and highly satisfactory evidence should take the case out of its operation. The evidence in this case is not of that character. We are, therefore, of the opinion that by the assignment to Brown by Gurnee, Hayden & Co., the relation of mortgagor and mortgagee was not disturbed, but still subsisted unimpaired.
Whilst that relation still subsisted, Brown assigned his interest in the premises to his son, James P. Brown, who claims the title, divested of the right of redemption, by virtue of a deed from the canal commissioners, by surrendering to them the original certificate to Gaffney. If James P. Brown took the assignment, with notice of Gaffney’s right to redeem from his father, he acquired no more than his father’s rights. He thereby received the rights, and occupies the position of his father in every respect. That he either had notice of the condition of the title at the time he purchased, or'had such notice as put him upon inquiry and charged him with notice, is true, as Gaffney was in the open, visible possession- of the premises. This is held, by numerous decisions of this court, to be amply sufficient to charge a purchaser with notice of'all legal and equitable claims of the occupant. He then received the assignment, subject to redemption, and did not in the least change that right by procuring a deed from the-canal commissioners.
But it is insisted that the relation of the parties to this property was changed by the arbitration of Toe, and a court of equity will not interfere, however inequitable the transaction might be. After a careful examination of the record, we are unable to perceive any evidence showing that there was an arbitration of this controversy. Yoe states, that Gaffney requested him to make a proposition to Brown, to divide the property, which he did, and it was accepted, and when they came to consummate the agreement, it was found to be inconvenient to make an equal division, when a new agreement was made. By it a portion of the property was deeded to Brown, and a mortgage was given to him upon the balance, to secure Gaffney’s notes for $1,800. There is in this nothing that lias the slightest semblance to an arbitration, but it was simply a contract made by the agency of a third person. If this was held to be an arbitration, we are at a loss to perceive what description of agreement, made through an agent, would not be an arbitration. But even if it was what it is claimed, still the parties abandoned it, and entered into a new and different agreement, by which it was agreed that Gaffney was to deed the whole property to Brown upon his paying to Gaffney $500 in money, and delivering him a pair of horses, wagon and harness, worth about three hundred dollars.
Much stress is placed upon this feature of the case, especially as the money was paid to Richardson, and by him to Gaffney, and the horses, wagon and harness were delivered to Richardson, who was authorized to deliver the deed and receive the money and property. lie was only authorized io deliver the deed, upon a full compliance with the terms of the agreement. Yet James P. Brown would only pay $125, claiming that he should retain the $75 to pay taxes on the property. Gaffney insisted that Richardson had done wrong in receiving less than the full amount, and took the money to Chicago and deposited it in a bank, and gave the certificate to Richardson to hold until the matter was. settled, or to let-Brown hav« it and the property if he would receive them. It was offered to him, but he refused to receive it and give up the deed.
It appears that when this arrangement was made, Brown, through Richardson, made the offer, and said that Gaffney might- do worse. Gaffney at first declined the offer, but after-wards concluded lie could do nothing else, as the property would be sold in a few days without redemption, and accepted the proposition. We perceive from this evidence that Brown intended to coerce Gaffney into this arrangement, as the statement “ he might do worse,” could have been designed for no other purpose. And Gaffney evidently so understood it, as he said “ he could do nothing else, as the property would he sold in a few days without redemption.” When it is remembered that this property was worth seven or eight thousand dollars, and all of the incumbrances held against Gaffney, by Brown, did not exceed three thousand dollars, it seems perfectly apparent that Brown was using the power that a creditor possesses over his debtor, to coerce him into a relinquishment of his right of redemption. This, we think, was oppressive and unconscionable, and calls for the interposition of a court of equity to afford relief. The fact that the only title held before this transaction occurred, by plaintiff in error, was a mortgage to secure the payment of money, no injustice can result to him by compelling him to receive his money with interest, and satisfying his mortgage ; on the other hand, if a redemption were not allowéd, the complainants would sustain a loss of perhaps not less than five thousand dollars.
The decree of the court below is affirmed.
Decree affirmed.
