| Ill. | Nov 15, 1888
delivered the opinion of the Court:
On the final hearing, upon the pleadings and evidence, the circuit court dismissed the original bill of Belding, and also the cross-bill of Seymour. A writ of error was sued out in the Appellate Court by Seymour, where the decree of the circuit court was affirmed. To reverse that judgment, Seymour has sued out this writ of error.
As the complainant in the original bill (Belding) is not before the court, and is not complaining, it will not be necessary to enter upon a consideration of the matters involved in the original bill, except so far as may be necessary to a proper and legitimate determination of the matters involved in the cross-bill.
The different transactions between Mackay and Belding, wherein money was advanced and a deed taken, may be regarded as mortgages. Indeed, there is no controversy between the parties in regard to the fact that the deeds executed and delivered by Belding and wife to Mackay were given as security for money loaned, and were in fact mortgages. If, therefore, Seymour had obtained a judgment and a levy on the lands while this relation existed between Belding and Mackay, doubtless, if anything had been left after the payment of Mackay’s claims, which were prior liens, such assets might properly have been reached by Seymour in satisfaction of his judgment. But it will be observed that Mackay, in his answer, sets up, that as often as once in each year after February 9, 1872, he and Belding had an accounting together; that on the 1st day of November, 1876, they had a full and complete accounting, and on such accounting Belding was found to be indebted to him in the sum of $13,750; that they then executed, in duplicate, a contract, under which, in ease Belding paid said sum, with interest at ten per cent per annum, on or before a certain date, Mackay was to convey to Belding all the lands Belding had conveyed to him, except those deeded to Heath. It is also set up, that after the accounting Belding paid nothing, but in the fall of 1878 offered to surrender the lands and his contract; that Mackay accepted the offer, and the contract held by Belding for a conveyance of the lands was surrendered, and that Belding accepted a lease of the lands, under which he agreed to occupy the same until the 1st of March, 1880, and pay as rent two-fifths of the crops raised.
The contract of November 1, 1876, and the lease, were put in evidence, and, so far as appears, they were fairly and deliberately made by the parties. They speak for themselves, and the rights and obligations of the two contracting parties must be determined by them. It is true that Belding claims, in his evidence, that he was to have $1500 if he surrendered the contract and his interest in the lands, but in this he is not supported by any other evidence in the record.
As to the lease, it is claimed that he did not understand its terms and conditions. The lease was not,'however, executed until he had full opportunity to read it and study its provisions. No haste or undue activity was resorted to for the purpose of procuring its execution, but it was left in the custody of a third party, for Belding to examine and execute. He called on that party, read the lease, and went away, and on a subsequent day returned and deliberately executed it. Where a contract is executed under such circumstances, it is the party’s own fault if he did not understand it, and he will be bound by its terms and conditions. If, therefore, the rights of Belding and Mackay were settled by the contract of November 1, 1876, and the agreement under which it was surrendered and a lease executed, it is plain that at the time Seymour obtained his judgment there was no title in the lands resting in Belding upon which the judgment could become a lien. Conceding that in the fall of 1878 the relation existing between Belding and Mackay was that of mortgagor and mortgagee, as Mackay held the legal title, and Belding but an equity, the relation of mortgagor and mortgagee might be terminated by a surrender of the contract providing for a conveyance, held by Belding, and the acceptance of a lease. Where the transaction was fair, and not attended with oppression or fraud or undue influence, and the mortgagee has not availed himself of his position to obtain an advantage over the mortgagor, a bona fide agreement between the parties to vest the entire estate in the mortgagee will be sustained, and the execution of a formal deed will not be required. West v. Reed, 55 Ill. 242" date_filed="1870-09-15" court="Ill." case_name="West v. Reed">55 Ill. 242; Carpenter v. Carpenter, 70 id. 457; Harrison v. Trustees of Philips Academy, 12 Mass. 456" date_filed="1815-10-15" court="Mass." case_name="Harrison v. Trustees of Phillips Academy">12 Mass. 456; 2 Washburn on Real Prop. (3d ed.) 67; 2 Jones on Mortgages, see. 977.
This disposes of the case so far as Seymour may claim relief under the judgment he obtained on the 26th day of January, 1880, and the next question to be considered is, whether the release of the mortgage given by Belding and wife to Helen M. Seymour, in 1867, which was entered upon the record by Helen M. Seymour. October 10,1871, operated as a release of the lands from that mortgage. If it did, of course no decree could be rendered foreclosing the mortgage.
Section 8, chapter 95, of our statute, provides, that upon payment of a mortgage the mortgagee shall enter satisfaction upon the margin of the record of such mortgage, in the recorder’s office, which shall forever thereafter discharge and release the same, and shall bar all actions or suits brought, or to be brought, thereon. Here the release was made in due form. It was done with the' knowledge and approbation of Seymour, who owned the mortgage indebtedness, by his wife, in whose name the mortgage was taken. If the release had' been procured by fraud, or if the evidence established that the mortgage was released by accident or mistake, there might be ground for setting it aside; but the evidence fails entirely to' establish a case of fraud, accident or mistake. The arrangement, whatever it may have been, which led to the release, was made between Belding and Seymour. Mackay had nothing to do with it. Indeed, he did not know at the time that the Seymour mortgage existed. He had two abstracts of title to the land, neither of which showed the Seymour mortgage.
Seymour, in his evidence, in speaking of the release, said: “I knew of the releasing of this trust deed at the time it was done. It was arranged between Belding and myself that the trust deed should be released, for the purpose of allowing him to raise the money to carry out his agreement with me to purchase cattle, in which I was to have an interest or partnership in lieu of the amount secured by the trust deed, but as Belding failed to carry out his agreement to give me an interest in the cattle, neither my wife nor myself received any consideration for releasing the trust deed.”
Belding gives the following account of the release: “The reason she (Helen Seymour) cancelled it (the mortgage) was, some time in the fall Seymour wanted to go into the cattle business, and we wanted money to buy them. We found we could get the money from the Northwestern Life Insurance Company. The company required an abstract of title to the land, and certificate of two or three men of its value. I got a certificate from Duncan Mackay, putting the value of the land at $75 an acre, and got another one of 3". F. Allison, putting it at $65 an acre. Allison made an abstract. The trust deed was cancelled to raise money to pay off Duncan Mackay, • and money to buy the cattle. I was to furnish the money, Seymour to have half the cattle when fattened and sold. I did not obtain the money of the insurance company. A short time after that, Mackay came to my house and stayed all night. When I lit him up to bed, he said he thought it was foolish for me to borrow the money of a foreign company when I could just as well get it near home at just as good rates. He said he could let me have the money to buy all the cattle I needed on the farm. That is the reason I did not get the money of the insurance company.”
It is not claimed that Belding was guilty of any fraud or deception which led to1 the release of the mortgage. The substance of the arrangement seems to have been this: that the release was made to enable Belding to raise money with which he and Seymour expected to engage in the cattle business; but after the release had been made, it turned out that Belding failed to raise the money. But the failure of Belding to raise the money could not instil life and vitality into a mortgage which had been cancelled of record. The statute says that where a mortgagee has received full satisfaction and payment of all such sum or sums of money as are really due, he shall enter satisfaction upon the margin of the record, which shall forever discharge and release the same, and shall bar all actions brought thereupon. This mortgage was not paid with money, but upon a consideration agreed upon which was valuable to the parties. No fraud or deception being practiced, it was cancelled and released of record. No reason is perceived why a release made under such circumstances may not be as valid and binding, and be treated in the same way, as a release where the mortgage debt has been paid. 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 agreement made by Belding with Seymour to furnish the necessary funds and engage in the cattle business, made in good faith, as it was, may be regarded as a sufficient consideration to support the contract of Seymour to release the mortgage.
Again, after it turned out that Belding was not able to raise the amount of money which it was anticipated he would, no effort was made by Seymour to avoid or set aside the release, but, on the other hand, in 1874,—three years after the mortgage had been released, and long after Belding had failed to furnish the money agreed upon, and after the arrangement to enter into the cattle business had been abandoned,—Seymour made a settlement with Belding, figured up the amount that was due on the old mortgage indebtedness, and took a new note for the balance due, surrendering the old note and mortgage. Now, while it may be conceded that the giving of a new note for an old one does not necessarily pay the old debt, yet in this case we are of opinion that the surrender of the old note and mortgage, and accepting a new note therefor, with the knowledge that the mortgage had been released of record, for three years, may be regarded as a ratification of the release on the part of Seymour. 0
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Justice Baker took no part in the consideration of this case in this court, he having passed upon the case in the Appellate Court.