184 Ill. 230 | Ill. | 1900
delivered the opinion of the court:
R. H. McMillan owned certain lands in Vermilion county, which he conveyed to his son, Joseph G. McMillan, and took from the latter a mortgage to secure the payment to himself, for life, of the sum of $120 per annum, and after his death the same amount to be paid to the appellant, Martha McMillan, the mother of that son, during her life. Subsequently the father died, leaving the mother surviving. On July 12,1883, about seven years after the death of the father, under some agreement between the mother and the son, the former released the mortgage to secure the payment of the sum of $120 per annum, and accepted from the son an instrument in writing by which he promised to pay her $120 per annum on the first day of March in each year during her life, the release of the mortgage being executed on the same date. On February 8,1887, Joseph G. McMillan died. On May 16, 1887, Martha McMillan, the mother, filed her claim against the estate of Joseph on the promise in writing made by him to her, claiming as the amount due and unpaid thereon, after allowing all just credits, the sum of $529.25, which was allowed and paid to her by the administratrix of Joseph’s estate, January 2,1888. On April 14, 1897, Martha McMillan filed her bill in equity to revive the said mortgage which she had released in 1883, and to foreclose the same for payments accruing since the time of the filing of her claim, and, in the alternative, for specific relief. The cause was referred to the master to take testimony and report his conclusions, and he recommended that the bill be dismissed. On hearing the court found the equities to be with the appellees, the widow and heirs of Joseph G. McMillan, and entered a decree dismissing the bill. The appellant prosecuted an appeal to the Appellate Court for the Third District, where the decree of the circuit court was affirmed, and this further appeal is prosecuted.
It is contended that the release of the mortgage was obtained by means of undue influence practiced upon the appellant by her son, Joseph. From the evidence appearing in this record we find nothing to show the exercise of undue influence, or any want of ability to protect her own rights in the appellant. The most that appears is that the son represented that he desired to sell the land, and that she states that she executed the release to enable him to do so. But this is very iar from showing the exercise of undue influence.
If the contention of the appellant as to the amount due her from the estate of Joseph was correct, and the amount due at the time of the presentation of the claim was $529.25, which amount was allowed and paid to appellant by the administratrix of Joseph, then, from the time of the execution of the agreement on July 12, 1883, to the time of the allowance of the claim, and its payment, January 2, 1888, nothing had been paid on that agreement, and the appellant stood by the execution of that agreement until April 14, 1897, when this bill was filed, and received nothing on that agreement except the amount paid by the administratrix, and constantly recognized the agreement itself without in any manner relying on the original mortgage. After the death of Joseph two of his heirs conveyed their interests in the real estate to a third person, who was an innocent purchaser. The long delay in filing this bill from the time of the release of the mortgage,- and the apparent reliance on the personal undertaking of Joseph, enabled this conveyance to be made, and on no principle of equity could an innocent third person be required to assume a burden which the record showed to have been expressly released by the appellant. To revive the mortgage as to the other heirs would be to compel them to assume the burden of a mortgage to a greater amount than their interest would have been subjected to had that mortgage never been released, and would be inequitable towards them. This results from the original release by appellant, and her laches in failing, for a period of nearly fourteen years, to file her bill for relief. It is clear that she was guilty of laches.
In determining whether there has been laches on the part of a complainant, a court of equity is not necessarily controlled by the period of limitation as fixed in actions at law. A delay for a less period than that prescribed by the Statute of Limitations will, according to the circumstances of the case, be held to be laches and to bar relief. (Williams v. Rhodes, 81 Ill. 571.) It was held in McDearmon v. Burnham, 158 Ill. 55 (on p. 62): “When a court of equity is asked to lend its aid in the enforcement of a demand that has become stale, there must be some cogent and weighty reasons presented why it has been permitted to become so. Good faith, conscience and reasonable diligence of the party seeking its relief are the elements that call a court of equity into activity. In the absence of these elements the court remains passive and declines to extend its relief or aid. It has always been the policy to discountenance laches and neglect.” And numerous authorities are there cited to sustain the proposition.
It is not claimed that any fraud or deception was used to induce the release of the mortgage, and no undue influence appearing, it can only be claimed, under this evidence, that the purpose on the part of one was to have the title clear so as to be able to sell, and of the other, to release the mortgage to enable him to do so. A release made under such circumstances may be as valid and binding, and be treated in the same way, as a release where the mortgage debt has been paid. As said in Seymour v. Mackay, 126 Ill. 341 (on p. 354): “The mortgagee may accept less than the full amount in payment of the mortgage and enter a valid release. If he may accept less than the full amount due he may agree to release for some other good and valuable consideration, and a release entered of record upon such a consideration ought to be binding on the parties and operate in the same way as if full payment had been made.” The consideration for the execution of the release was a valuable and sufficient one. On no principle of equity jurisprudence could this mortgage be revived or foreclosed. Neither is there apparent in this record anything showing a right to any other alternative equitable relief.
We find no error in the judgment of the Appellate Court, and it is affirmed. ’
Judgment affirmed.
