38 Ill. 252 | Ill. | 1865
delivered the opinion of the Court:
This was a suit in Chancery, commenced by Kiser to foreclose a mortgage executed by Samuel Heuston and Eliza Heuston, his wife. Defendant, Austin, set up by his answer as a defense, that he was, after the execution of the mortgage, an innocent purchaser of the mortgaged premises, without notice, and for a valuable consideration. Heuston by his answer admits the execution of the note and mortgage, and that the money had not been paid, but sets up and relies upon the release of the mortgage under an agreement of the parties interested. The oath of the parties is waived to their answers by the bill. On a hearing in the court below, relief was denied and the bill dismissed.
It appears from the evidence, that Heuston and wife executed a mortgage on the premises in controversy, to Kiser, on the 25th day of November, 1857, and filed it for record in the proper office on the same day. That Heuston and wife executed a deed for the same premises to Austin on the 17th day of December following, which was tiled for record on the 11th day of January, 1858, It also appears from the evidence that .at the time Heuston and wife executed the deed to Austin, Heuston had re-possessed himself of the mortgage executed to Kiser, having withdrawn the same from the Recorder’s office before itwas spread upon the record, and canceled the Recorder’s file mark, as he claims, with the consent of Kiser. He after-wards obtained possession of his mortgage and had it recorded on the 2d day of April, 1858. The evidence, we think, shows that the mortgage to Kiser was withdrawn from the Recorder’s office with his consent, and with the agreement that he was to take a new mortgage on other land to secure his debt. This is testified to by both Hood, who acted as Austin’s agent in purchasing the land, and by Heuston, who, in pursuance of the agreement, executed the new mortgage and left it with Messer, before whom it had been acknowledged, to be delivered to Kiser if he preferred it to the first mortgage. Hood had the record examined before he purchased for Austin, and found no mortgage to Kiser on record.
It is, however, insisted that Austin had notice of Kistir’s mortgage, through his agent, Hood, before he purchased. Heuston says that. Hood was informed that the mortgage to Kiser had been filed for record when he took the deed to Austin. Hood states that Heuston informed him that Kiser held the mortgage but was willing to release it and take a mortgage on his home farm. That he saw Kiser, who informed him that he had agreed to release the mortgage and take a new one on the home farm to secure his debt. It also appears that the mortgage on the farm was executed but was not accepted by Kiser.
There can be but little doubt that much, if not all, of this difficulty has originated from the Recorder’s violation of his duty in permitting the mortgage to be withdrawn before it was spread upon the records. After receiving and filing a deed for record it, in contemplation of law, is recorded and becomes notice to the world, and. before he has copied it into his record hooks, to permit it to be withdrawn by the maker, places it in his power to commit the grossest frauds upon innocent purchasers or subsequent incumbrancers. In this case Heuston properly-gave notice to the purchaser, but if the instrument had been spread upon the record the purchase would not have been consummated until Kiser had executed a release, and this controversy would have been avoided.
From the evidence, we are of the opinion that Kiser was bound to carry out his agreement with Hood to accept the new security and to release the first mortgage, if the purchase was made on the faith of that agreement. He had no right to hold out hopes and create expectations which would mislead purchasers. He had no right to induce Hood to consummate the purchase under the belief that he would make good his agreement to release this incumbrance, and then insist upon its enforcement. It is, however, said that the agreement by Kiser to release his mortgage was conditional. Heuston says it was, and Hood testifies that he was to release if Heuston would execute a mortgage on his home farm. The evidence shows that this condition was complied with, as Heuston and wife executed and tendered such a mortgage. Hood and Heuston did all they could to have the condition performed, and Kiser alone prevented the mortgage from becoming operative, by refusing its acceptance. We think that there was a sufficient performance of the condition to compel Kiser to release the mortgage, or to estop him from asserting any rights under it as to Austin.
But Austin failed to make out his defense, in not showing tha", 1 e was a purchaser for a valuable consideration. If he was a mere volunteer and paid, or became liable for nothing as a consideration for the conveyance, then he has not suffered, nor can he suffer any loss. If he paid a consideration for the purchase of the land he should have shown it, and what sum was paid. The fact was referred to in argument that he had satisfied, or became liable to satisfy, a mortgage on the land to the school fund of the township for eight hundred dollars, as the consideration, either in whole or in part. If this is true, then there was a sufficient consideration to support the purchase and to protect him in his purchase. But the evidence fails to show that such was the fact. If no sufficient consideration was paid to support the purchase, Austin, has no right to prevent plaintiff in error from foreclosing his mortgage. For the want of such proof the decree of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.
