Pearson v. PearsonPearson v. Pearson
- Reporters:
- ,
- Before:
- Scholfield
delivered the opinion of the Court:
This writ of error brings before us for review the decree of the circuit court of La Salle county on a bill in chancery in that court, by defеndant in error, against plaintiff in error, directing the conveyance of certain lands and the assignment and transfer of a certain promissory note, as in the bill particularly described, by the plaintiff in error to the defendant in error.
The controlling facts are: Beuben Bronson purchased certain lands belonging to the defendant in errоr, and lying in La Salle county, at a sheriff’s sale, under an execution against her. Starr, a judgment creditor of hers, redeemed from that salе, Bronson accepting the redemption money. The sheriff thereupon sold the lands, under Starr’s execution, to Samuel Dunavan. An agreement was then made between plaintiff in error and defendant in error, whereby the latter was to execute to him her promissory note for $3800, confess judgment thereon, and furnish him with the money necessary tо redeem from the sale to Dunavan, and he was to redeem from the sale, have the lands sold on execution, on his judgment, bid them in, and tаke deed therefor and hold it until she paid him, and as security for what shе owed him, which was some amount, not then adjusted, less than the amount of the promissory note she was to give him, and upon her making such payment he was to convey the lands to her. Defendant in error executed the promissory note, confessed the judgment thereon, and furnished plaintiff in error the money with which to redeem from the sale to Dunavan, as she thus agreed she would. Plaintiff in error redeemed from the sale to Dunavan, had the lands sold on an execution on his judgment, аnd took a deed therefor.
There is conflict in the evidencе, but we agree with the circuit court that the preponderanсe warrants the conclusion that the facts are as just stated. Wе are also of the opinion that the preponderanсe of the evidence shows that defendant in error had, after the making of this agreement, and before the filing of her bill, paid plaintiff in error all that she owed him. Upon these facts, we are clearly of the opinion that plaintiff in error is not justified in his refusal to convey the lands to defendant in error, and transfer to her the promissory nоte executed for the rent thereof, which he holds, and that the decree of the circuit court directing him to make such convеyance and transfer is right.
It is unnecessary to consider whether either Starr or plaintiff in error was entitled, as a matter of legal right, to rеdeem when they did so. Bronson and Dunavan, respectively, accepted the money they paid; as redemption money, and this terminated their several rights as purchasers of the lands. (Meyer v. Mintonye, 106 Ill. 414; Massey v. Westcott et al. 40 id. 160.) No one else is entitled to question whеther redemption was effected. It is not pretended that defendant in error had plaintiff in error to take and hold the title to the lаnds to defraud creditors, and no reason is therefore apрarent why she might not have him take and hold the title in the way it was agreеd that he should, in order that she might regain her lands and at the same time sеcure him in what she owed him. When a title to real estate is taken as a security for the payment of money, it is a mortgage, and it is always competent to prove that a deed, absolute on its face, is, in fact, hut a mortgage. Miller v. Thomas, 14 Ill. 428; Heald v. Wright et al. 75 id. 17; Bispham’s Eq. (2d ed.) sec. 155.
The decree is affirmed.
Decree affirmed.