Selby v. Geines

12 Ill. 69

• Court: Illinois Supreme Court
• Decided: November 15, 1850
• Status: Published

Opinion

Treat, C. J.

The bill sets up, as the ground for relief, an express agreement of the parties—omitted by mistake to be inserted in the mortgage—to the effect that the mortgaged premises, in case of default in the payment of the note, should not be sold unless they would bring en masse, two -thirds of the appraised value. The answer denies the allegation, and insists that the real agreement of the parties is correctly set forth in the mortgage. The proof is altogether too loose and unsatisfactory to justify a decree reforming the mortgage, by the introduction of the provision alledged to have been omitted. At most, it only shows that the complainant was very anxious that the provision should be incorporated in the mortgage, and contended that such was the agreement of the parties, while the defendant insisted that no such agreement had been made. The mortgage was then drawn in the usual form, and executed by the complainant. It may, perhaps, have been his impression at the time, that the mortgage contained the condition in question, or that the legal effect of the instrument would be what he desired, but there is no satisfactory proof of fraud or unfairness in the execution, or that it did not embrace all of the stipulations actually assented to by both of the parties.

The decree of the Circuit Court will be reversed, and the bill dismissed with costs.

Decree reversed.