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costs by him in this bebalf expended, to be taxed, and that he have execution therefor." This is an appeal to bring in review in this court the judgment entered in the Appellate Court dismissing the appeal to that court.
No motion to dismiss the appeal was submitted to the Appellate Court, but the court, after the cause had been submitted to it for decision, of its own motion adjudged the appeal should be dismissed. The only ground relied upon to sustain the judgment of dismissal is, that the appeal bond referred to in the order of the Appellate Court granting leave to file the same in substitution of the original appeal bond was so defective that it did not operate to confer jurisdiction on the Appellate Court to entertain the appeal.
The bond recited that it was given to perfect an appeal from a judgment in favor of the appellee, against the appellants, in the sum of $6200, rendered in the superior court of Cook county on the 30th day of June, 1900, being one of the judicial days of the June term, 1900, of the said court, and contained nothing relative to the rendition of the judgment of the superior court denying the motion to vacate the judgment rendered at the May term, 1900, or intention to appeal from the action of the court in denying such motion. The contention is, that no judgment was rendered in any sum against the appellants at the June term of the said superior court, but that the only judicial action taken at the said term was to allow and enter a remittitur, which operated to reduce the judgment of the May term to $6200, and overrule or deny the motion of the appellants to vacate the judgment entered against them at the May term, 1900, of the said court, and there being no recital in the bond alluding to the action of the court in overruling the motion to vacate the judgment of May term, 1900, therefore the bond did not operate to perfect the appeal which had been prayed and allowed from the judgment or order denying the motion to vacate said judgment of May term, 1900.
The appellants entered exceptions to the judgment of the superior court overruling and denying the motion to vacate the judgment entered at the May term, 1900, and prayed an appeal from such action of the court. The prayer for an appeal was granted on condition they should, within twenty days, file an appeal bond in the sum of $7000, to be approved by the court. In pursuance of such order they filed a bond which met the approval of the judge of the said court, and the record was removed into said Appellate Court. Afterwards, it having been ascertained such bond did not contain the necessary recitals, the parties stipulated and the Appellate Court ordered the appellants should be permitted to file the appeal bond bearing date July 28, 1900, nunc pro tunc, in substitution of the bond so found to be defective. This latter bond was supposed by the parties to be coinplete and perfect in every respect. The Appellate Court ordered it should be filed and given effect "nunc pro tunc," and the cause was submitted to the Appellate Court for decision as to the alleged errors assigned upon the record. The Appellate Court did not determine the cause upon the errors assigned by the parties, but dismissed the appeal on the ground the appeal bond was not in conformity with the statutory requirements.
There is no suggestion the appellants did not file the original appeal bond in good faith, as being a perfect and sufficient bond. It was withdrawn from the files when the second bond was substituted in its stead, and it does not appear in the transcript. The parties and the Appellate Court regarded the defect in it as but an irregularity, and treated it sufficiently legal and formal to invest the Appellate Court with jurisdiction to entertain the appeal and order the filing of the bond of July 28, 1900, nunc pro tunc, and retain the cause for final decision. The cause was thereupon by the parties submitted to the Ap. pellate Court for decision on the errors assigned on the record by the respective parties. The appellee could not
have been heard to complain of the alleged sufficiency of the bond, (Price v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 40 Ill. 44,) and the Appellate Court should have proceeded to the final disposition of the cause. It was error to dismiss the appeal.
The judgment of the Appellate Court is reversed and the cause will be remanded to the Appellate Court, with directions to that court to consider and determine the cause upon the errors assigned upon the record.
Reversed and remanded, with directions.
1. CONVEYANCES—when transaction is not a mortgage. A convey. ance by quit-claim deed from the owners of the equity of redemption to the mortgagee and a bond executed by the mortgagee to the grantors in the quit-claim deed, by which he agrees to convey the premises to them upon their payment of a specified sum at a certain date, do not amount to a mortgage.
2. SAME—when bond for deed is not forfeited. A bond for deed is not forfeited by the obligee's failure to pay the principal at the specified time, where the obligor extends the time first agreed upon, and afterward, although anxious to collect the interest, was unwilling to receive the principal.
3. ACCOUNTING—when obligor in bond for deed is chargeable with rent reserved in lease. The obligor in a bond for deed who has leased the land for a year under an agreement to apply the rent on the bond, is chargeable with the rent for the term if he could by reasonable diligence have collected it, and has no right, without the consent of the obligees, to release the tenant from a portion of the rent.
4. Costs-costs in chancery cases are ordinarily discretionary with the court. In chancery cases the taxing of costs is ordinarily in the discretion of the court, and if no abuse of discretion is shown the action of the court will stand, on appeal.
APPEAL from the Circuit Court of Mercer county; the Hon. W. H. GEST, Judge, presiding.
BASSETT & BASSETT, and ROBERT I. WATSON, for appellants:
The deed in this case was absolute, and in order to hold that it was a mortgage requires clear proof that it was really given as security for the payment of a debt. Lindauer v.Cummings, 57 I11. 195.
A conveyance by deed absolute, and bond given by the grantee to the grantor at the same time, do not prove that the transaction was a mortgage. Silsbe v. Lucas, 36 Ill. 462; Pitts v. Cable, 44 id. 103.
Persons may make time of the essence of the contract, and provide for a forfeiture if not strictly performed; and such contracts will be enforced at law and in equity. Kemp v. Humphreys, 13 Ill. 573; Pomeroy on Contracts, sec. 390; Smith v. Brown, 5 Gilm. 314; Cunningham v. Railroad Co. 77 Ill. 180; Heckard v. Sayre, 34 id. 142; Conway v. Case, 22 id. 127; Phelps v. Railroad Co. 63 Ill. App. 468; Wynkoop v. Conway, 21 Ill. 585.
The payment of money after the right of the vendor to declare a forfeiture does not stop the party from declaring a forfeiture for the remainder on refusal to pay the remainder. Cunningham v. Railroad Co. 77 Ill. 180.
The payment of a considerable part of the purchase money will not excuse the purchaser for non-performance. Steele v. Biggs, 22 Ill. 645.
JAMES M. BROCK, for appellee:
A deed absolute in terms, given to indemnify another person for moneys agreed to be paid on the debt of the grantor, is a mortgage. Roberts v. Richards, 36 Ill. 339.
A mortgagee in possession becomes liable to account for the rents and profits actually received or which by proper diligence he might have received. Fountain v. Bookstaver, 141 Ill. 461; Jackson v. Lynch, 129 id. 72.
Forfeitures are not favored in equity, and must yield to the principle of compensation where fair dealing and good conscience demand. Nor will a forfeiture be enforced which the parties have waived by a mutual course
of conduct. King v. Radeke, 175 Ill. 72; 74 Ill. App. 369; Watson v. White, 152 Ill. 364.
An agreement that time shall be of the essence of the contract may be waived or set aside, and especially so in the contemplation of a court of chancery by the consent or conduct of the party in whose favor and for whose benefit such stipulation is made. Allen v. Woodruff, 96 Ill. 11; Palmer v. Ford, 70 id. 369; Watson v. White, 152 id. 364.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:
On March 3, 1898, Edwin H. Carroll, one of the appellants, held a mortgage upon one hundred and twenty acres of land in Mercer county, executed by William A. Kincaid and wife August 12, 1895, to secure a note for $2400, with interest at seven per cent. Kincaid and wife had conveyed the equity of redemption to Alfred Tomlinson, the appellee, and Otis Whan. The interest was in arrears and Carroll was insisting upon payments being made to reduce the amount due, or upon further security. Negotiations were begun, which culminated March 10, 1898, in an agreement, by which Tomlinson and Whan conveyed said equity of redemption, by quit-claim deed, to said Edwin H. Carroll, who, with his wife, Caroline Carroll, the other appellant, gave them a bond conditioned for the conveyance of said property to Tomlinson and Whan upon the payment of a certain sum on January 1, 1899, with interest at seven per cent. On December 31, 1898, Whan conveyed all his interest in the land to the appellee, Tomlinson, who filed the bill in this case January 30, 1901, against said appellants and William T. Lee, a tenant, alleging a tender to appellants of the amount due according to the terms of the bond and a refusal by appellants to receive the same. tendered was brought into court, and the prayer was for a decree that appellants should convey the premises to appellee according to the terms of the bond. Lee was