Kreidler v. Hyde

Appellate Court of Illinois

Kreidler v. Hyde

120 Ill. App. 505, 1905 Ill. App. LEXIS 686

CourtAppellate Court of Illinois

DecidedMay 5, 1905

DocketGen. No. 11,724

StatusPublished

Cited by1 cases

This text of 120 Ill. App. 505 (Kreidler v. Hyde) 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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Kreidler v. Hyde, 120 Ill. App. 505, 1905 Ill. App. LEXIS 686 (Ill. Ct. App. 1905).

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Opinion

Mr. Presiding Justice Baker

delivered the opinion of the court.

It is clear that the decree appealed from must be reversed. The averment that the mortgaged premises were conveyed to appellant, “ who assumed and agreed to pay” the indebtedness secured by the trust deed, is but an averment of a conclusion and not a sufficient averment of fact on which to base a deficiency decree against him. Thompson v. Dearborn, 107 Ill. 87; Baer v. Knewitz, 39 Ill. App. 470; Boisot v. Chandler, 82 Ill. App. 261.

. The only evidence offered for the purpose of showing that appellant Had assumed or agreed to pay the mortgage debt, was a certified copy of a recorded deed to him of the premises, which contained the usual assumption clause.

This evidence would not be sufficient to support a deficiency decree against the grantee, under a bill containing the necessary averments. To ''support such a decree the evidence must show that the deed was delivered to and accepted by the grantee, or that he, in some other manner, assented to the assumption clause in the deed. The production of a certified copy of a recorded deed to a grantee does not prove the delivery of the original deed to him, nor its acceptance by him. Thompson v. Dearborn, supra; Bay v. Williams, 112 Ill. 91-94.

The decree of the Circuit Court will be reversed and the cause remanded.

Reversed, and remanded.

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Mr. Presiding Justice Baker

delivered the opinion of the court.

It is clear that the decree appealed from must be reversed. The averment that the mortgaged premises were conveyed to appellant, “ who assumed and agreed to pay” the indebtedness secured by the trust deed, is but an averment of a conclusion and not a sufficient averment of fact on which to base a deficiency decree against him. Thompson v. Dearborn, 107 Ill. 87; Baer v. Knewitz, 39 Ill. App. 470; Boisot v. Chandler, 82 Ill. App. 261.

. The only evidence offered for the purpose of showing that appellant Had assumed or agreed to pay the mortgage debt, was a certified copy of a recorded deed to him of the premises, which contained the usual assumption clause.

This evidence would not be sufficient to support a deficiency decree against the grantee, under a bill containing the necessary averments. To ''support such a decree the evidence must show that the deed was delivered to and accepted by the grantee, or that he, in some other manner, assented to the assumption clause in the deed. The production of a certified copy of a recorded deed to a grantee does not prove the delivery of the original deed to him, nor its acceptance by him. Thompson v. Dearborn, supra; Bay v. Williams, 112 Ill. 91-94.

The decree of the Circuit Court will be reversed and the cause remanded.

Reversed, and remanded.

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120 Ill. App. 505, 1905 Ill. App. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreidler-v-hyde-illappct-1905.

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