86 Ill. App. 193 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The written instrument executed by Catherine Mallory to Riley, hereinabove set out, and its deposit with Riley, together with the warranty deed conveying the title of the premises in question to Catherine Mallory for the purpose of securing her indebtedness to Riley, constituted in equity a mortgage. Peckham v. Haddock, 36 Ill. 38; Chadwick v. Clapp, 69 Ill. 119.
This mortgage is in equity assignable, and was, by the indorsements on the written instrument set out in the statement preceding this opinion, assigned to, and the title thereto in equity was thereby vested in, appellee. 2 Jones on Mort., Sec. 457; Barrett v. Hinckley, 124 Ill. 44-6.
Appellee, being the owner of the mortgage in question, as well as the debt secured by it, there being no note or other evidence of the debt aside from the mortgage, upon the 28th day of July, 1896, by her quitclaim deed of that date, voluntarily made by her, conveyed all her right and interest as mortgagee in the real estate in question to appellant. This deed was in equity a release of the mortgage interest of appellee. Dorkray v. Noble, 8 Mo. 278; Welsh v. Priest, 8 Allan (Mass.), 165; 2 Jones on Mortg. (2d Ed.) Sec. 972; Waters v. Waters, 20 Ia. 363-7; Hussey v. Hill, 120 N. C. 312; Woodbury v. Aikin, 13 Ill. 639-42; Barrett case, supra.
The contention that appellee, by her quit claim deed, only conveyed her dower, is not tenable. The owner of the fee at that time, Catherine Mallory, was living, and on the same day conveyed it to appellant. The husband of appellee had no right, title or interest in the real estate, and therefore appellee had no right of dower, inchoate or otherwise. The only right or interest which appellee had at this time was her interest as mortgagee. This interest, in the light of the evidence and the condition of the title at that time, she no doubt intended to and did effectually convey to appellant by her deed to him. A deed is always to be construed not only with reference to its words, but in the light of the circumstances existing at the time it was made and the relations of the parties to the title. Lake Erie, etc., R. R. Co. v. Whitman, 155 Ill. 514; Elgin City Bkg. Co. v. Center, 82 Ill. App. 405-12, and cases there cited.
The other contentions of counsel are not necessary to be considered. The decree of the Superior Court is reversed and the cause remanded, with directions to dismiss the bill for want of equity.
