30 Ill. 515 | Ill. | 1863
In no case which has ever before been presented to this court, have we had so much difficulty in comprehending and fully understanding the facts. The whole controversy is about the facts, and yet all these tacts result in two great questions, upon which the whole case depends; the first of which is, whether a certain mortgage really belongs to the complainant; and the second is, whether a transaction between Daniel A. Baldwin and Ebenezer Thayer was a mortgage, or a sale with a right to re-purchase.
The various transactions of the parties connected with this affair are so numerous and so complex, that to make them fully understood, would involve the necessity of reciting nearly the whole of the evidence which constitutes the bulk of this immense record. This would unnecessarily encumber an opinion, without any corresponding advantage to the profession and the public; and the interest of the parties is centered in the decision itself, independently of the reasons for that decision.
A very succinct history of the leading incidents of this case may without impropriety be here given, and to do more than that we are not inclined, for in order to understand the case, we have been obliged to study it so much that its contemplation even has become distasteful and a burden to the court, and no doubt the saméis true of counsel.
On the twenty-seventh of January, 1837, Daniel A. Baldwin was the owner in fee of the premises in controversy, and on the same day, mortgaged the same to Moses P. Hatch, to secure the sum of twenty-two thousand five hundred dollars. The ownership of this mortgage is one of the controversies between the parties. The complainant claims to have derived title to it in two ways. First: that Marvin McNulty and George M. Chapman, her son, composing the firm of Mc-Nulty & Chapman, bought the mortgage of Hatch, and paid him therefor twenty-two hundred and forty acres of wildlands in Illinois. That ten hundred and forty acres of the land were paid for in money by McNulty & Chapman, and that twelve hundred acres of the same were paid for with the proceeds of anote made by Albert McNulty for the accommodation of McNulty & Chapman, and by them indorsed, and also indorsed by Trask & Marvin, and discounted by the State Bank of Indiana.
The mortgage was transferred by Hatch to Albert McNulty by an assignment absolute on its face, but which the complainant claims was nevertheless in trust to secure the payment of this note, and after that in trust for McNulty & Chapman.
Afterwards, Marvin McNulty, one of the firm, assigned all his interest in the assets of the firm of McNulty & Chapman to his copartner, George Chapman, and he assigned the entire assets of the firm to Daniel French, who, as such assignee, sold the mortgage in question to the complainant, as she alleges. This shows in brief one of her claims of title to the mortgage in question.
Second : That Albert McNulty assigned the mortgage to Azor S. Marvin, to secure the payment of the note above mentioned, and an obligation of McNulty & Chapman to Nevans & Townsend, which Azor S. Marvin and his copartner, Alanson Trask, were liable upon as indorsers for McNulty & Chapman, and after paying these in trust for Albert McNulty.
A judgment was obtained by the State Bank of Indiana upon the note above mentioned against George M. Chapman, Marvin McNulty, Azor S. Marvin, Alanson Trask and Albert McNulty, upon which an execution was issued and levied upon the goods of George M. Chapman. Chapman then procured H. H. Hunnewell to buy the bank judgment, and after selling the goods of Chapman which had been levied upon, the execution was returned nulla bona as to the residue; a formal assignment of the judgment was made by the bank to Hunnewell, and Chapman then procured him to file a creditor’s bill in his name against all of the defendants in that judgment, to have the mortgage subjected to its payment.
On the fifth of March, 1842, Azor S. Marvin transferred the mortgage to E. Thayer, in pursuance of a settlement of that suit made with him as the agent of Hunnewell.
The complainant claims that Hunnewell stood in a fiduciary relation to Chapman, and his assignee, French, so that when Thayer received an assignment of the mortgage from A. S. Marvin, he received it in trust for French, as the assignee of Chapman, from whom the complainant claims title to the mortgage.
Previous to the fifth of March, 1842, the premises had been sold for taxes, and under this tax sale John P. Marvin had acquired a tax title.
Now the titles to the property may be summed up as follows : The $22,500 mortgage standing in the name of Azor S. Marvin, to secure the payment of the Indiana bank judgment, and the debt of Nevans & Townsend against McNulty and Chapman. A tax title held by John P. Marvin. The equity of redemption standing in the name of Daniel A. Baldwin., The bond to secure which the $22,500 mortgage was given had been sued to judgment, and the judgment satisfied of record. The Indiana bank judgment was. held by H. H. Hunnewell, and by virtue of that judgment he was endeavoring to subject the $22,500 mortgage to its payment. Could Hunnewell succeed in thus getting control of the mortgage, he could foreclose Baldwin’s equity of redemption, and perfect the title to the property in himself.
In this position of affairs, Ebenezer Thayer, acting as the agent of Hunnewell, on the fifth of March, 1842, made a settlement whereby he canceled the Indiana bank judgment, and satisfied the debt due Nevans & Townsend, and received an assignment of the $22,500 mortgage from Azor S. Marvin to himself. He then bought the tax title of John P. Marvin, and paid him therefor, and received from him a. conveyance of the premises. Baldwin also conveyed the equity of redemption to Thayer. This perfected in Thayer an apparent title.
C. C. King, the attorney of Thayer, gave to Baldwin a memorandum in writing that he would procure from Thayer an agreement to sell to Baldwin the premises upon the payment of eleven hundred and fifty dollars, with interest and taxes, within eighteen months, but no such agreement was executed.
The complainant, however, claims that this memorandum by the attorney of Thayer was binding upon him, and made the transaction as between Thayer and Baldwin a mortgage, or that it was in the nature of a mortgage upon a mortgage, and as Baldwin has quit-claimed to the complainant, she has succeeded to his right, and upon performing the condition, shows a title independently of the one she acquired' from Daniel French, the assignee of her son, George M. Chapman. But we cannot regard this transaction as a mortgage; at most it is but an agreement to sell for a certain sum, and is subject to the incidents of such an agreement.
The defendants derive their title directly from Thayer, thus: Thayer conveyed the premises to Charlotte Smith, and she conveyed the same to the defendant, W. B. Ogden, and he conveyed the same in certain proportions to the other defendants.
We do not deem it necessary to go into the investigation of the question of notice to the defendants of the rights claimed under G-. M. Chapman, because we are satisfied, after a careful examination of the evidence, and all the circumstances detailed by the various witnesses, that McNulty & Chapman never did in fact purchase the $22,500 mortgage, and that the note discounted by the Indiana State Bank was made for the accommodation of Baldwin, and that it was his debt to pay, and that the mortgage in question and also another mortgage were in fact satisfied by the twenty-two hundred and forty acres of land.
If the testimony of Chapman and Baldwin in this case was to be taken as absolutely true, we should undoubtedly arrive at a different conclusion, but we agree with the court below, that all the circumstances which are detailed in the record, and which in themselves are undisputed, show that their statements must be discredited; we must take their former statements sometimes sworn to and sometimes not, but which are corroborated by an infinite variety of other circumstances, rather than their present testimony, which is, we think, éffectually impeached by other evidence. This could be clearly shown by a careful analysis of the record, but an opinion which would do this would make a book of itself, and yet it would settle no principle of law which could be of service in the determination of other cases. This we do not think it our duty to do, but it would rather be going beyond the bounds of propriety, as it would appear for a mere display.
We are satisfied the complainant has shown no title, and the decree must be affirmed.
Decree affirmed.