Mason v. Showalter

85 Ill. 133

• Court: Illinois Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Hr. Justice Breese

delivered the opinion of the Court:

This was assumpsit, on the common counts, in the Cass circuit court. The pleas were, non assumpsit and accord and satisfaction, on which a trial was had, resulting in a verdict for the plaintiff, on which the court, on overruling a motion for a new trial, rendered judgment, and the defendant appeals.

On a careful examination of the points made on the record, we are unable to perceive any error. The plaintiff had an interest in this land to the extent of his payments on it, and the recovery is for no more, after the remittitur was entered. Appellant never, in any way, foreclosed, or attempted to foreclose, this interest, and as he sold the land for a large sum, he ought to answer to appellee for his interest in the land. This amounted to nine hundred and thirty seven dollars in money paid on the purchase, and created a resulting trust in the land to that extent, with interest added, for which appellant must be liable, besides the valué of the improvements made by appellee. Appellant, as he held the legal title as security only for his advances, could, at any time, if there was a default on appellee’s part, have instituted proceedings in equity to have the security disposed of to reimburse himself, and the surplus, if any, paid to appellee. -But he never attempted to foreclose appellee’s interest.

We perceive no error in the record, and affirm the judgment.

Judgment afi/rmed.