Spaulding v. Mozier

57 Ill. 148

• Court: Illinois Supreme Court
• Decided: September 15, 1870
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

This bill was filed in the circuit court of Lake county, to correct an alleged mistake in a chattel mortgage, and to enjoin the sale of the mortgaged property under an execution in favor of the appellees.

The property mortgaged is correctly described, but the mistake which is sought to be corrected consists in a misdescription of the lot of ground upon which the property was temporarily situated.

The mistake complained of is wholly immaterial, and the aid of a court of equity can not be invoked to do a useless thing.

That part of the mortgage that designates the property as being then situated “ on lot one, block number eighteen, in the village of Highland Park,” may be rejected as surplusage, and without it the description of the property conveyed is perfect. The geographical position of the property, at the date of the execution of the mortgage, forms no necessary part of the description of the property itself.

In case a controversy should arise as to the identity of the property, parol evidence would be admissible to identify the property covered by the mortgage.

In Myers v. Ladd, 26 Ill. 415, parol evidence was held to be competent for such a purpose, and that when the property was so identified consistently with the description in the mortgage, it was sufficient.

After rejecting those words which locate the temporary position of the property at the date of the execution of the mortgage, enough remains to convey the property, and there is therefore nothing for a court of equity to correct, even if it possesses the power to reform such instruments. The law affords the appellants a full and adequate remedy, and whatever rights they may have under the mortgage, they must pursue on the common law side of the court.

It was lawful for the appellees, who were judgment creditors of the mortgagor, to sell the property subject to the mortgage, and there was therefore no reason for the interference of a court of equity on that ground. The bill was properly dismissed.

The decree of the circuit court is affirmed.

Decree affirmed.