Kemp v. Moir

Appellate Court of Illinois

Kemp v. Moir

45 Ill. App. 490, 1892 Ill. App. LEXIS 256

DecidedDecember 12, 1892

StatusPublished

This text of 45 Ill. App. 490 (Kemp v. Moir) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kemp v. Moir, 45 Ill. App. 490, 1892 Ill. App. LEXIS 256 (Ill. Ct. App. 1892).

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Opinion

Mr. Justice Haricer.

This was a bill to foreclose a mortgage on real estate. The description of the land as given in the mortgage is as follows:

“ The east side of the southeast quarter of section thirty-three (33); the east half of the northeast quarter of section thirty-three (33); the northwest quarter of the northeast quarter of section thirty-three (33); the east half of the southwest quarter of the northeast quarter of section thirty-three (33), containing two hundred and forty-acres, more or less, all lying and being in township ten north, five west, in Henderson County, State of Illinois.”

The bill alleges that the tract first described, “ the east side of the southeast quarter,” etc., was, at the time the mortgage was executed by the mortgagors and 'mortgagee, intended to be and include one hundred acres off the east side of the southeast quarter of section thirty-three. The bill does not pray for a reformation of the mortgage; nor was any evidence heard as to any mistake in the description, or as to what was intended by the parties at the time it was executed. ¡Nevertheless, the court decreed a sale of “ one hundred aeres off the east side of the southeast quarter of section thirty-threef with the other tracts described in the mortgage.

The decree was erroneous in that it directed the sale of twenty acres more land than was described in the mortgage. The “ east side of the southeast quarter ” means the a east half of the southeast quarter.” It described eighty acres of land instead of one hundred acres. Chiniquy v. The People, 78 Ill. 570; Winslow v. Cooper, 104 Ill. 235; Hill v Blackwelder, 113 Ill. 294. To entitle the defendant in error to a decree for the sale of one hundred acres off the east side of the southeast quarter of section thirty-three, the bill should have contained in proper form an allegation of mistake and a prayer for a reformation of the mortgage. The decree will be reversed in so far as it directs a sale of one hundred acres off of the east side of the southeast quarter of section thirty-three, and in all other respects affirmed; and the cause will be remanded with directions to correct the decree in accordance with the views herein expressed, i. e.} by directing a sale of the east half of the southeast quarter of section thirty-three.

Affirmed in part, reversed i/n part.

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Mr. Justice Haricer.

This was a bill to foreclose a mortgage on real estate. The description of the land as given in the mortgage is as follows:

“ The east side of the southeast quarter of section thirty-three (33); the east half of the northeast quarter of section thirty-three (33); the northwest quarter of the northeast quarter of section thirty-three (33); the east half of the southwest quarter of the northeast quarter of section thirty-three (33), containing two hundred and forty-acres, more or less, all lying and being in township ten north, five west, in Henderson County, State of Illinois.”

The bill alleges that the tract first described, “ the east side of the southeast quarter,” etc., was, at the time the mortgage was executed by the mortgagors and 'mortgagee, intended to be and include one hundred acres off the east side of the southeast quarter of section thirty-three. The bill does not pray for a reformation of the mortgage; nor was any evidence heard as to any mistake in the description, or as to what was intended by the parties at the time it was executed. ¡Nevertheless, the court decreed a sale of “ one hundred aeres off the east side of the southeast quarter of section thirty-threef with the other tracts described in the mortgage.

The decree was erroneous in that it directed the sale of twenty acres more land than was described in the mortgage. The “ east side of the southeast quarter ” means the a east half of the southeast quarter.” It described eighty acres of land instead of one hundred acres. Chiniquy v. The People, 78 Ill. 570; Winslow v. Cooper, 104 Ill. 235; Hill v Blackwelder, 113 Ill. 294. To entitle the defendant in error to a decree for the sale of one hundred acres off the east side of the southeast quarter of section thirty-three, the bill should have contained in proper form an allegation of mistake and a prayer for a reformation of the mortgage. The decree will be reversed in so far as it directs a sale of one hundred acres off of the east side of the southeast quarter of section thirty-three, and in all other respects affirmed; and the cause will be remanded with directions to correct the decree in accordance with the views herein expressed, i. e.} by directing a sale of the east half of the southeast quarter of section thirty-three.

Affirmed in part, reversed i/n part.

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45 Ill. App. 490, 1892 Ill. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-moir-illappct-1892.

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