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and that the other half shall be held in trust for the mortgagor and be conveyed to the latter by the mortgagee.
Courts do not look with favor upon any agreement subsequently made by a mortgagor, that what was originally a mortgage shall be regarded as an absolute conveyance. Such an agreement will not be sustained unless it is fairly made, and no undue advantage is taken by the creditor. (1 Jones on Mortgages, sec. 251). In Wynkoop v. Cowing, 21 Ill. 570, referred to by counsel for appellant, the subsequent agreement, made between the mortgagor and mortgagee for the purchase of and extinguishment of the equity of redemption, was in writing, and signed by both of the parties to it. In the case at bar, it is admitted by appellant that the relation of mortgagor and mortgagee between himself and Mrs. Hill was terminated in the spring of 1889, but it is contended that she then verbally agreed to retain the legal title to an undivided one-half of the land and to convey to him the other half. We think that this oral agreement to convey to him one-half of the land, to which she held title, was void under the Statute of Frauds, which provides, that "no action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith," etc. (1 Starr & Cur. Stat. p. 1192).
In Morton v. Nelson, 145 Ill. 586, where property was claimed to have been purchased by three persons and the title was placed in one of them, a verbal agreement, that the latter should make a deed to the others, so as to invest them each with a one-third interest, was held to be invalid, because it related to a sale of lands, or an interest therein, and was not in writing nor signed by the party alleged to have made the agreement. (See, also, Stephenson v. Thompson, 13 Ill. 186; Perry v. McHenry, id. 227; Cloud v. Greasley, 125 id. 313).
It is to be furthermore observed, that the bill in the case at bar asks for a partition of the property before the complainant has established any title to it. The bill sets up a parol agreement to convey land, and asks the court, on the proof of such parol agreement, to appoint commissioners to make partition, but contains no prayer for a specific performance of the contract. “A decree should first be had for a specific performance, on a bill filed for such purpose, and which, no doubt, might also contain a prayer for the partition of the lands, in case a specific performance should be decreed." (Williams v. Wiggand, 53 Ill. 233; Reynolds v. McCurry, 100 id. 356).
We are of the opinion, that the appellant was not entitled to a partition of the premises, either under the allegations of the original bill, or under the amendments subsequently made thereto.
The circuit court held, that appellant was entitled to redeem as from a mortgage, and that an account should be stated between the parties with a view of ascertaining the amount of indebtedness to be paid by appellant to entitle him to a redemption, but required, as a condition to granting relief of this nature, that the bill should be amended so as to make it a bill for redemption and accounting, instead of a bill for partition. Whether this view was correct or not need not be inquired into, as appellant declined to amend his bill as suggested, and it was properly dismissed.
It is now contended on the part of appellant, that the circuit court should have allowed him to account and redeem under the general prayer for "other and further relief." The general rule is, that, where there is a special prayer for particular relief and also a prayer for general relief, only such relief will be granted under the latter prayer as is agreeable to, or consistent with, the case made by the bill, and as the case stated in the bill and sustained by the proof will justify. (Story's Eq. Pl. sec. 40; 1 Beach's Modern Eq. Pr. secs. 91, 92). If the prayer is
for special relief, and for other relief in addition thereto, no relief which is inconsistent with the special relief asked for, will be granted. That is to say, no relief can be granted under the general prayer in a bill in chancery, which is of a nature distinct and independent of the special relief prayed. (Colton v. Ross, 2 Paige, 396; Franklin v. Osgood, 14 Johns. 527; Wilkin v. Wilkin, 1 Johns. Ch. 111).
We are inclined to think, that, where a bill is framed as a bill for partition and makes a special prayer for partition, redemption from a mortgage, together with an accounting as to the amount due on the mortgage, is not such a species of relief as can be granted under the prayer for general relief in such bill. In the suit at bar, the case made by the bill is a case where appellant is alleged to be owner of one-half of the land and appellee, Charlotte B. Hill, is alleged to be the owner of the other half, and where it is prayed that a partition may be made and the respective interests may be set apart to the owners. This being so, the case stated in the bill and the special prayer of the bill are inconsistent with a case where the deed held by said appellee is declared to be a mortgage, and she is declared to be, not owner of any part of the premises, but mortgagee of the whole, and where appellant is declared to be, not the owner of one-half, but of the whole subject to the mortgage, and where the relief proposed to be granted is, that he be allowed to redeem the whole of the premises from such mortgage upon payment of the amount ascertained to be due.
We are of the opinion, that the circuit court did not err in holding that redemption and accounting could not be allowed under the general prayer of the present bill, and that the bill should have been amended before appellant could be entitled to such relief.
The decree of the circuit court is affirmed.
162 566 81a 625
162 566 207 262
CAROLINE M. ROBERTSON et al.
JOHN O. WHEELER.
Filed at Ottawa May 12, 1896–— Rehearing denied October 13, 1896.
1. CLOUD ON TITLE-complainant in bill to remove must be in possession. Complainant in a bill to remove a cloud from title must have actual possession of the land, or show that it is unimproved and unoccupied.
2. COURTS-jurisdiction of subject matter is not a matter of consent. Jurisdiction over the subject matter of a suit cannot be conferred on a court by consent of parties.
3. NOTICE-what is not notice of possession—pasturing cattle on the land. Pasturing cattle on an inclosed lot by the lessee of a portion thereof which is not divided from the rest by any partition fence, does not make his possession of that portion separate from the possession of the remainder, so as to constitute notice of his lessor's rights in the property under an unrecorded deed.
4. SAME-possession not notice of adverse title. Possession of land is not notice of title adverse to that under which possession is held.
5. EVIDENCE-notice of prior unrecorded deed must be clear and positive. Proof of notice of a prior unrecorded deed, to defeat the title of a purchaser who relies on the records, must be so clear and positive as to leave no reasonable doubt that the taking of the later conveyance was an act of bad faith toward the first purchaser.
6. MORTGAGES-assignment of secured debt with reservation of security -extinguishment. A mortgage on land is kept alive, on assigning a judgment for the debts secured thereby against an administrator, reserving the real estate security with all rights therein, but releasing all claims against the estate for anything due upon the judgment; although the mortgagee, as a part of the same transaction, receives a conveyance of the land from a person claiming title under the heirs.
7. LIMITATIONS—prior mortgages unaffected by statute. Prior mortgages are unaffected by the ten years limitation act of 1872.
APPEAL from the Circuit Court of Cook county; the Hon. L. C. COLLINS, Judge, presiding.
SAWIN & VANDERPLOEG, and F. P. SIMONS, for appellants:
The circuit court erred in taking jurisdiction of this cause to set aside the Carrie Walker deed, because the
defendants are in possession and the remedy at law is complete. Parker v. Shannon, 114 Ill. 192; Gage v. Mayer, 117 id. 632; Lundy v. Lundy, 131 id. 138.
The recitals in the decree do not conclude any of the defendants, as all the evidence is preserved. Cooley v. Scarlett, 38 Ill. 316; Hughes v. Washington, 65 id. 245.
The statute directs the proceedings to be personal against those who have a right to oppose it, and that the practice shall be the same as in chancery. Rev. Stat. 1874, chap. 3, secs. 98-111.
Upon the death of an ancestor the real estate he may leave undevised descends at once and vests in the heir, subject to the lien of his ancestor's debts if the personal property is insufficient to pay them. And such a title is worthier in law than a title by devise. Smith v. Me Connell, 17 Ill. 135; Vansyckle v. Richardson, 13 id. 171; McCoy v. Morrow, 18 id. 519; Bishop v. O'Conner, 69 id. 431; Kennedy v. Northup, 15 id. 148.
An administrator's application to sell is not a proceeding in rem but in personam, and the doctrine of caveat emptor applies strictly and with full force to such sales. Donlin v. Hettinger, 57 Ill. 348; Fell v. Young, 63 id. 106; Waldin v. Gridley, 36 id. 532; Bishop v. O'Conner, 69 id. 431.
An administrator's proceeding is void as against those who are not parties and over whose person the court has no jurisdiction. Detrick v. Migott, 19 Ill. 146; McConnel v. Smith, 23 id. 611, and 39 id. 279; Morris v. Hagle, 37 id. 150; Trimble v. Gibbs, 14 Ohio, 323; Huls v. Buntin, 47 Ill. 396; Botsford v. O'Conner, 57 id. 72; Long v. Thompson, 60 id. 27; Smith v. Laatsch, 114 id. 271; Michel v. Hicks, 19 Kan. 578.
The statute being silent as to purchasers from heirs. being necessary parties, it does not therefore follow that they need not be parties. Chase v. Hathaway, 14 Mass. 221; Bishop's First Book of the Law, sec. 24.
Notice by possession depends upon whether the inquiry which it is presumed to excite would, in the natural course of events, disclose the title under an unrecorded