Chicago Title & Trust Co. v. Aff

84 Ill. App. 552, 1898 Ill. App. LEXIS 724

• Court: Appellate Court of Illinois
• Decided: July 20, 1899
• Status: Published

Opinion

Mr. Presiding Justice Sears

delivered the opinion of the court.

The agreement made by Aff, the holder and owner, and Mrs. Draut, the maker, of the promissory notes, for the cancellation and surrender of the notes, was, in equitable consideration, an extinguishment of the notes., The transfer after that, time to appellant by Schintz, who never had any interest whatever in the notes and was appropriating them wrongfully to his own use, carried no equitable rights under the mortgage. Olds v. Cummings, 31 Ill. 188; McAuliffe v. Reuter, 166 Ill. 491; Buehler v. McCormick, 169 Ill. 269.

There is no question here of latent equities of third parties. This mortgage could not have been enforced by the mortgagee against the mortgagor, and hence under the authorities cited, 'can not be enforced by appellant. As between mortgagor and mortgagee the mortgage debt was extinguished. Therefore, appellees were, upon the facts presented, entitled to the decree which was entered.

It is suggested by counsel for appellant that the bill of complaint contains no allegation as to the possession* or occupancy of the premises in question. There is, however, aside from the mere suggestion, no argument in this behalf presented by the briefs.

It is enough to say that there was no demurrer interposed to the amended bill of complaint. Monson v. Kill, 144 Ill. 248.

It is argued in effect by counsel for appellant that neither of the appellees could maintain the bill of complaint; that Aff could not, because he was not the mortgagor, and that Draut could not, because she had conveyed the property before the bill was filed, and was neither legal nor equitable owner of the land.

The assignments of error do not question the joinder of complainants; if either complainant has equity, the decree must be sustained.

It is sufficient that Mrs. Draut could maintain the bill because of her covenants of warranty to Aff. Gage v. Schmidt, 104 Ill. 106; Remer v. Mackay, 35 Fed. Rep. 86.

And if the effect of the decision in Smith v. Brittenham, 109 Ill. 540 (see also Bissell v. Kellogg, 60 Barb. 617), is to overrule Gage v. Schmidt, then, by the authority of the former case, Aff is, as the grantee of Mrs. Draut, entitled to the relief granted.

For the purposes of this case it is enough if either complainant is entitled to the relief which the decree gives.

It is also argued that Aff was so far negligent in his conduct in the matter of the notes that he is not entitled to any equitable relief. And in this behalf Miller v. Larned, 103 Ill. 562, is cited. But the ground upon which the court refused to apply the doctrine of Olds v. Cummings, supra, to the Miller v. Larned case, was that the notes there in question were accommodation paper, and the court necessarily held that the rule announced in Olds v. Cummings, and repeatedly thereafter affirmed, could have no logical application to a mortgage given merely to secure accommodation paper.

There is no such question in the case now under consideration. These notes were not accommodation pape'r, and were not upon the market through any consent, actual or constructive, of the mortgagor or her grantee. We are not prepared to hold that the taking of the notes to Schintz, who was the trustee in the trust deed, and leaving them with him for the purpose of cancellation and release of the trust deed, was an act so negligent as to deprive Aff of his equities as against the successor in trust, -who took the notes from the trustee and for a consideration. The evidence discloses that Aff did make repeated efforts to secure the notes and other papers from Schintz.

We are of opinion that the decree is. right, and” it is affirmed.