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Syllabus.

Now, on the hypothesis that this money was a gift from the husband to the wife, such gifts are ordinarily void at law, and being so can be revoked by the husband. Courts of equity will, in certain cases, support such gifts, and most of the cases in which this question has been debated and decided, are cases where the heir at law or devisee was claiming against the wife. Even in those cases clear and incontrovertible evidence is required to establish such gifts as a matter of intention and fact. 2 Kent Com. 163; 2 Story Eq. Jur. $1374. Here, such proof is wholly wanting, and the proceeding is at law.

The court, therefore, properly gave to the jury the first and third instructions, and properly refused the defendant’s seventh instruction, because, if it was a gift from the husband, it was void in law and subject to revocation by the husband.

In the case of Farrell v. Patterson, sv.pra, it was held, when the wife sets up this statute and claims rights under it, the burden of proof, as in all other cases where an affirmative fact is alleged, is on the wife to inaintain the issue.

Perceiving no error in the record, the judgment must be affirmed.

Judgment affirmed.

JULIUS STUHL

v.
JOSEPH A. SHIPP.

44 133 22a 30 44 133 132 411 44 133 51a 633

1. JUDGMENT BY CONFESSION - in vacation - where to object for want of proof. Where a judgment is entered by confession in vacation, under a power of attorney, more than a year and a day after the power of attorney was executed, it is necessary for the defendant to apply to the court in which the judgment was entered, to set the same aside, and to show some equitable reason therefor, before it will be reversed on the ground that no affidavit was filed showing the defendant was still alive, and that the debt was due and unpaid.

2. SAME - where the judgment is entered for too much. And when the judgment is within the ad damnum laid in the declaration, it will not be reversed because it may appear to be for an amount greater than the sum duo upon the note which was the basis of the confession, no application having been made in the court below to correct the error.

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WRIT OF ERROR to the Circuit Court of Livingston county.

On the 16th day of February, 1865, Julius Stuhl executed his promissory note as follows:

" $200.00.

PONTIAC, February 16, 1865. Thirty days after date, for value received, I promise to pay to the order of Jacob Countryman, $200, with interest at ten per cent per annum until due, and if not paid when due, then at the rate of ten per cent per annum, as liquidated damages, until paid.

JULIUS STUHL." On the same day, the maker of the note executed, in the usual form, a power of attorney to confess a judgment on the note.

The payee assigned the note to Joseph A. Shipp, who caused a judgment by confession to be entered thereon, in vacation, on the 23d of April, 1866, more than a year and a day after the maturity of the note, and the date of the power of attorney.

The defendant brings the record to this court by writ of error. It does not appear that any affidavit or other proof was presented in the court below, that the maker of the note was alive at the time the judgment was entered, or that the debt remained unpaid; and the absence of such proof is one of the grounds of error alleged.

The judgment was entered for $254.54, and costs, and it is claimed this is more than was due by the face of the note.

Mr. CHARLES J. BEATTIE, and Messrs. DICKEY & RICE, for the plaintiff in error.

Mr. GEORGE C. CAMPBELL, for the defendant in error.

Per CURIAM : The case of Minds v. Hopkins, 28 Ill. 351, was so far modified in Rising v. Brainard, 36 IIl. 80, as to render it necessary to apply to the court below to set aside a judgment by confession, and to show some equitable reason therefor, before this court will reverse on the ground that the power of attorney was inore than a year and a day old, or its execution

Syllabus.

not duly proven. This court also held in Iglehart v. Morris, 34 Ill. 503, that when the judgment was within the ad damnum laid in the declaration, it would not be reversed because it might appear to be for an amount greater than the sum due upon the note, which was the basis of the confession, no application having been made in the court below to correct the error. On the authority of these cases this judgment must be affirmed.

Judgment affirmed.

JAMES S. Dwen, Executor, etc., et al.

v.
THATCHER BLAKE, Executor, etc.

44 135 168 238

44 135 175 23

1. MORTGAGE what constitutes intention of parties governs. To ascertain whether a transaction between parties amounts to a sale or a mortgage, courts of equity will look beyond the mere forms with which it is clothed, and although it be a sale in form, if it clearly appears by proof to have been a loan or debt and security for its payment, it will be treated as a mortgage.

2. SAME - when in form a sale - proof must be clear to change its character. Where parties give to a transaction all the forms of a sale, the proof must be clear that it was intended as a mortgage, in order to chango its character. Slight, indefinite evidence is not sufficient.

3. SAME — what will be considered a mortgage. T., desirous of entering certain lands, applied to M., an agent of G., for the purchase of land warrants, for such purpose ; whereupon an agreement was made between them, whereby, M. sold to him certain warrants, for which T. executed to him his notes for the purchase price, the payment of which was secured by entering the lands in the name of M., M. giving to T. his bond for the conveyance of the same to him, upon the payment of the notes. T. failed to pay the notes, and G., the principal, having died, M. quitclaimed the lands to G.'s heirs. Subsequently, the premises were sold on execution against T. who was in possession, on a judgment in favor of J., and B. redeemed from the sale, as a judgment creditor of T. On a bill to redeem filed by B., held, that the transaction amounted to a sale of the warrants, and the entry of the lands in M.'s name, was intended as a security for the payment of the notes, and must be treated as a mortgage; that M. held the land in trust for G.'s heirs, subject to T.'s equity of redemption, and that the deed by him to them was without consideration, and received by them merely as such heirs, and not as bona fide purchasers; and that B. by his purchase under Jo's execution succeeded to all of the rights of T.

Opinion of the Court.

4. TENDER — in a bill to redeem - not required. The law does not require a mortgagor to make a tender before he can compel a redemption. He is only required to pay the sum found due by the court, within the time limited by the decree.

5. SAME-equity not bound by fixed rules concerning the tender of money. Courts of equity are not bound by any fixed rules in relation to the tender of money, but they will not allow the ends of justice to be perverted or defeated, by the omission of an unimportant or useless act, which nothing but a mere technicality would require.

6. PLEADING IN CHANCERY bill to redeem- of allegation of tender. In a bill to redeem, a tender being unnecessary, an allegation in the bill of a tender, unproved, can not defeat the pre-existing right.

WRIT OF ERROR to the Circuit Court of De Kalb county;

the Hon. Isaac G. Wilson, Judge, presiding.

The facts in this case are fully stated in the opinion.
Messrs. HURD, BOOTH & KREAMER, for the plaintiffs in error.

Mr. JAMES M. Wight, for the defendant in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was a bill in equity filed by Francis Burnap in the Circuit Court of De Kalb, against John S. Green, Mary Ann Green, Elizabeth Green, Adelia Green and Albert G. Green, to redeem certain lands from a mortgage. The bill alleges, that in 1849, Thomas R. Green was engaged in Chicago, in selling and locating land warrants; that Henry A. Mix was his agent in Ogle county, and conducted the business in his own name. In the month of September of that year, Asa Talmadge was desirous of entering the land in dispute, and applied to Mix for the purchase of land warrants for the purpose. That he sold to Talmadge warrants for three hundred and sixty acres for the sum of $432.25, to be paid in one year. That to secure the payment the warrants were located in the name of Mix, who gave to Talınadge two bonds for conveyances of the lands by warranty deeds, upon the payment of the several installments with interest, the last falling due one year from the

Opinion of the Court.

15th of September, 1849, for which Talmadge gave bis notes. The bonds recite a sale of the lands.

In the month of October, 1849, Talmadge paid on the note first maturing, $145. Between that time and the 18th of June, 1852, Green died, leaving the defendants his heirs at law. That John S. Green was appointed administrator. Mix delivered the notes to him, and conveyed the lands by a quitclaim deed to the heirs of Green, on the 1st day of June, 1852. That Albert G., on the 21st of August, 1852, conveyed his interest in the lands by quitclaiin deed to John S. Green. These deeds were duly recorded in that year.

Talmadge recorded his bonds on the 31st of January, 1854, but that there was a mistake in recording. That by mistake the bonds described the lands as being in range three east of the fourth, instead of the third, meridian. That on the 27th of February, 1854, John S., Elizabeth and Adelia E. Green, quitclaimed their interest in part of the lands to Mary Ann Green. And John S., Adelia E. and Mary Ann quitclaimed a part of the lands to Elizabeth Green. And on the 23d of September, 1856, Albert G., Adelia E. and Mary Ann quitclaimed to John S. Green, except one quarter section, which deed was recorded in January, 1858. That in the year 1858, Talmadge tendered to John S. Green, as administrator of Thomas R. Green, the full amount of principal and interest on the notes, and he refused to receive the tender. That he inclosed the premises in 1858, took possession, and retained it ever since.

That on the 4th of September, 1858, all of the premises except forty acres were sold on an execution against Talmadge, on a judgment in favor of Johnson; that Burnap redeemed the lands from that sale under a judgment which he had against Talmadge, and then sold on his execution, became the purchaser, and procured a sheriff's deed for the same; that Mary Ann Green commenced a suit in ejectment in the Circuit Court of the United States against Talmadge to recover the lands, which was still pending when this bill was filed; that the legal title was in Green's heirs; that Talmadge had held

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