« ForrigeFortsett »
5. Mortgages 594(1)-Redemption may be the trust deed under foreclosure was a sec
made by any person if holder of certificate of ond lien on the premises, that the interest on sale accepts redemption money.
the first mortgage had not been paid, and Redemption may be made by one who has that he had moneys derived from rents in his no legal right to redeem, if holder of certificate possession which ought to be applied to that of sale accepts money deposited for redemp- purpose, an order was entered, authorizing tion.
him to pay $4,000 on the interest due on the 6. Mortgages Om594(2)-Owner of equity of first incumbrance. A decree of foreclosure
redemption entitled to confess judgment to of the junior trust deed was entered on Auenable creditor to redeem.
gust 6, 1920. It found $11,034.50 due appelOwner of equity of redemption has right lant. On September 3 following, the premisto confess judgment for bona fide indebtedness, es were sold to appellant for $10,000, and a even though indebtedness was created after master's certificate of sale was delivered to expiration of debtor's period of redemption, to him. There was a deficit of $1,391.27 due apenable creditor to redeem from foreclosure sale. pellant, for which Marion was personally li. 7. Mortgages 594 (2)-Right of judgment able, and a decree was entered accordingly. creditor to redeem dependent on statute only. On December 13, 1920, appellant and Rich
Right of mortgagor's judgment creditor to ard L. Williams entered into a written agreeredeem does not depend on any lien on land, ment with Meyerowitz, who was then the but is solely. statutory.
owner of the equity of redemption, by which,
among other things, after reciting the proAppeal from Circuit Court, Cook County ; ceedings to foreclose the junior trust deed Francis S. Wilson, Judge.
and the entry of the deficiency decree, the inSuit by Richard L. Williams against stitution of suit to foreclose the first mort. Charles S. Williston, trustee, George J. Wil gage, and the desire of the parties to settle liams, and others. Decree for plaintiff, and their differences, it was provided (1) that defendant last named appeals. Affirmed.
Meyerowitz deposit in escrow his quitclaim
deed conveying to appellant all his interest Slottow & Leviton, of Chicago (Charles in the property; (2) that the receiver, after Leviton, of Chicago, of counsel), for appel- retaining his fees, pay out of the moneys lant.
in his hands the interest due on the first William Slack, of Chicago, for appellee mortgage, the sum due appellant on the deMarmor.
ficiency decree, and the balance, amounting
to $5,329.41, to Meyerowitz; (3) that the reDE YOUNG, J. Appellant George J. Wil- port of sale and the receiver's report in the liams, on May 28, 1914, made his promissory. suit to foreclose the junior trust deed be apnote for $40,000, due in five years after its proved and the receiver discharged; (4) date, with interest at 5 per cent. per annum, that the deficiency decree entered in that and to secure its payment he, with his wife, suit be satisfied of record; (5) that the suit conveyed to Charles S. Williston as trustee, to foreclose the first mortgage' be dismissed by a trust deed in the nature of a mortgage, / without prejudice to its lien or the indebtedcertain improved real estate in the city of ness secured thereby; and (6) that MeyeroChicago. On September 19, 1914, appellant witz be given an option, at any time prior to and his wife conveyed the property, subject May 1, 1921, to discharge the two incumto the lien of the trust deed mentioned, to brances, pay certain specified charges, and Leo Marion, and received from him, as a redeem the property by the execution of a part of the purchase price, his eight notes, new incumbrance in the principal sum of seven for $1,000 each, and one for $500, due, $35,000, and the payment of the balance due respectively, from one to eight years after in money. It was further provided that the their date. The payment of these notes was exercise of the option and compliance with secured by a trust deed, also to Williston, its terms would entitle Meyerowitz to rewhich became a second lien on the same leases of the two incumbrances and the reproperty. Six days later Marion conveyed the turn of the quitclaim deed deposited by him premises to Harry A. Sultan. By mesne con- in escrow, but that his failure to do so veyances Samuel Meyerowitz acquired the ti. should be deemed a relinquishment by him tle to the property, and owned it, subject to of all claim to or interest in the property the two incumbrances, on October 28, 1918, and authorize the delivery of the quitclaim when appellant, because of default in mak- deed to appellant. Meyerowitz did not evering the payments due him, filed a bill to cise his option, and the quitclaim deed was foreclose the junior trust deed against Mari-delivered to the appellant and filed for recon and others in the circuit court of Cookord on June 6, 1921. county. On the following day Richard L. On September 26, 1921, appellee Alexander Williams was appointed receiver. He took | W. Marmor obtained a judgment by confespossession of the property and collected the sion in the circuit court of Cook county rents until September 28, 1920, shortly after against Marion for $5,250, upon a note dated which date he was discharged. On August September 16, 1921, for $5,000, and attor4, 1920, upon his petition setting forth that I ney's fees. An execution was immediately
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N. E.) issued and placed in the sheriff's hands with premises through or under the defendant, 12 $10,638.33, for the purpose of making re- months from the sale within which to redemption from the master's sale of Septem- deem therefrom. No redemption was made ber 3, 1920. A certificate of redemption was by any person defined in, or within the time issued and filed for record September 28, prescribed by, section 18. If such redemp1921. The sheriff made a levy, and on Oc-tion is not made, section 20 of the same act tober 25, 1921, the property was sold to Mar- provides that any decree or judgment credi. mor for $16,074.16. The appellant on the tor, his executors, administrators, or assame day, October 25, 1921, surrendered his signs, may, after the expiration of 12 months master's certificate of sale to the sheriff, and within 15 months after the sale, redeem and received from him the redemption money the premises in the manner there prescribed. deposited by Marmor. No further redemp When a foreclosure suit is instituted certain tion having been made, the sheriff, on De- statutory rights attach: First, for the benefit cember 30, 1921, delivered his deed to Mar- of those directly interested in the land ; and mor, and it was filed for record on January secondly, for the benefit of judgment cred14, 1922.
itors. The statutory provisions which conDefault having been made in the payment fer these rights cannot be disregarded. If of the note for $40,000, dated May 28, 1914, an instrument is a mortgage when delivered, Richard L. Williams, on December 19, 1921, it continues to be such, with its incidents, unfiled his bill in the circuit court of Cook til the right of redemption is barred by some County for the foreclosure of the trust deed mode recognized by law. Parties cannot, which secured its payment. To this bill ap- even by express stipulations in a mortgage, pellant, his wife, Marmor, and others were destroy or cut off the right of redemption. made parties defendant. Appellant filed an Bearss v. Ford, 108 Ill. 16; Halbert v. Turnaffidavit and an answer to the bill. In the er, 233 Ill. 531, 84 N. E. 704; De Voigne v. affidavit he set forth the proceedings to fore- Chicago Title & Trust Co., 304 Ill. 177, 136 close the junior trust deed, the contract with N. E. 498. Meyerowitz, and the execution, delivery, and [2-4] The purchaser of land at a master's recording of the quitclaim deed to appellant sale pursuant to a decree of foreclosure is pursuant thereto; and he asserted his own- not by his purchase or the certificate of sale ership of the equity of redemption in the issued to him vested with the title to the property and the invalidity of the redemp- land, but acquires the right to receive the tion by Marmor, because (a) the foreclosure redemption money, if redemption is made proceedings had merged with the title; (b) within the time and in the manner prescribMarmor was not a bona fide purchaser with-ed by the statute, or, in case no redemption out notice or a bona fide judgment creditor is so made within that period, then to reof Marion; and (c) Marmor had not offered ceive a master's deed. Sutherland v. Long, to refund to appellant the money paid by 273 Ill. 309, 112.N. E. 660. A master's cerhim for the quitclaim deed. Appellant in tificate of sale does not purport to convey bis answer averred that he had instituted title, but describes the premises purchased, an ejectment suit against Marmor and oth- the amount paid therefor, and the time when ers to adjudicate the title to the property, and the purchaser will be entitled to a deed if asked that proceedings in the pending fore- no redemption be made. Smith’s Stat. 1923, closure suit be stayed until the suit in eject- c. 77, § 16; Lightcap v. Bradley, 186 Ill. 510, ment had been determined. Marmor answer-58 N. E. 221; Allison v. White, 285 III, 311, ed the bill, claiming title by virtue of his 120 N. E. 809. Both before and after the sheriff's deed. The complainant filed a repli- sale under a foreclosure decree the owner of cation to Marmor's answer. The cause was the equity of redemption has the same esreferred to a master in chancery, whose re
tate in the land. Lightcap v. Bradley, suport was approved and a decree of foreclo- pra; Bradley v. Lightcap, 202 Ill, 154, 67 N. sure and sale entered. From that portion E. 45; Ætna Life Ins. Co. v. Beckman, 210 of the decree which found that Marmor 111. 394, 71 N. E. 452. The acquisition of was the owner of the equity of redemption that estate or interest by the holder of the in the property, and that appellant had no certificate of sale prior to the expiration of right, title, or interest therein, the appellant the period of redemption does not destroy prosecutes this appeal.
the right to redeem by any person entitled  Appellant's first contention is that by thereto by the statute. Moreover, in the inthe contract with Meyerowitz and the ensu- stant case the right of Marmor to redeem ing quitclaim deed appellant merged the lien was recognized by appellant, for after he of the second mortgage and of the master's had acquired, and while he owned, the incertificate of sale issued to him in the suit to terest of Meyerowitz in the property, he surforeclose it, with the fee-simple title, and in rendered his certificate of sale, and accepted consequence extinguished the foreclosure the redemption money deposited by Marmor. proceedings, so that there was nothing from Hence there was no merger, as appellant conWhich Marmor could redeem. Section 18 of tends, of the lien of the second mortgage or chapter 77 of the Revised Statutes gives the of the certificate of sale with the fee-simple right to any defendant, his heirs, administra- title. tors, assigns, or any person interested in the  But appellant contends, even if there
were no merger, and the foreclosure proceed-, land, but exists solely by statute. Heinroth ings were kept alive for redemption purpos- | v. Frost, 250 Ill. 102, 95 N. E. 65; Level v. es, Marmor was not a bona fide judgment Goosman, 285 Ill. 347, 120 N. E. 758; Garden creditor without notice, but was acting in City Sand Co. v. Christley, 289 III, 617, 124 collusion with Marion, who had no furthur | N. E. 729. The facts shown by the record title to the premises, for the purpose of de- are not of such a character as to vitiate the priving appellant of the benefits of his trans- judgment recovered by Marmor against Maraction with Meyerowitz. The master's sale ion. occurred on September 3, 1920, and appellant The decree of the circuit court will be af. became the purchaser. Meyerowitz, the own-firmed. er of the equity of redemption, bad, by stat Decree afbrmed. ute, until September 3, 1921, to redeem. On December 17, 1920, he entered into the contract with appellant and Richard L. Wil
(315 Ill. 199) liams, pursuant to which the property was PETERSON V. INDUSTRIAL COMMISSION conveyed to appellant, and by the contract
et al. (No. 15967.) Meyerowitz's right of redemption was limited (Supreme Court of Illinois. Dec. 16, 1924. to May 1, 1921, or shortened by 4 months and
Rehearing Denied Feb. 5, 1925.) 2 days. The deficiency decree in appellant's favor was satisfied, and Meyerowitz was paid I. Master and servant Om 361-Employer may out of moneys in the receiver's hands. Ap be liable for compensation, though not ex. pellant paid nothing to Meyerowitz. By the clusively engaged in hazardous occupation. satisfaction of the deficiency decree and
Under Workmen's Compensation Act, $ 3, the redemption from the master's sale, noth- par. 8, one may be liable for compensation ing remained due and owing to appellant. though not exclusively engaged in one of hazWhether Marmor had actual or constructive
ardous occupations enumerated. notice of the contract and the quitclaim 2. Master and servantem363—Farmer operat. deed, or whether he could have compelled ing sawmill on farm and his employee held appellant to accept the redemption money, is
within Compensation Act. not material to a decision of this case. Ap
Workmen's Compensation Act, $ 3, par. 8, pellant surrendered his certificate and ac- though liberally construed as to farmers, does cepted the money. Redemption may be made not exempt a farmer who engages in an inde.
pendent, extrabazardous occupation from liaby one who has no legal right to redeem, if bility for compensation, and held, farmer operthe holder of the certificate of sale accepts ating sawmill on farm for manufacture of railthe money deposited for redemption. 2 Jones | road ties and lumber, and employee engaged on Mortgages (7th Ed.) § 1055a ; Smith v. to assist in its operation, were within act. Jackson, 153 Ill. 399, 39 N. E. 130; Pearson 3. Master and servant en 405(5)-Evidence v. Pearson, 131 Ill. 464, 23 N. E. 418. As be
held insufficient to sustain finding of partial tween himself and appellant, Marmor became dependency of parents. a redemptioner, and entitled to all the rights Evidence of dependency of parents on deas such.
ceased held insufficient to sustain finding of par(6, 7] Marion was in need of money, and tial dependency within Compensation Act. Marmor lent him $600. He took his debtor's note for $5,000 as security, upon the advice
Error to Circuit Court, Kankakee County; of his attorney that he could redeem the Arthur W. De Selm, Judge, property if it should become necessary for
Proceedings under the Workmen's Comhis protection. It is not denied that Marion pensation Act by William Bagby and wife actually borrowed $600 from Marmor. If
for the death of Willard N. Bagby, their son, the indebtedness was bona fide, the fact that employee, opposed by 0. T. Peterson, emthe judgment was confessed for the express ployer. Award of compensation by an arpurpose of enabling the creditor to effect a bitrator, affirmed by the Industrial Commisredemption from the sale of the property sion, was on certiorari confirmed by the circonstitutes no legal or equitable objection cuit court, and employer brings error. Reto prevent redemption. Strauss v. Tuck
versed and remanded. horn, 200 Ill. 75, 65 N. E. 683; Kufke V. Blume, 304 Ill. 288, 136 N. E. 678. The Soelke & Johnson, of Chicago, for plaintiff owner of an equity of redemption has the in error. right to confess judgment for a bona fide in Miller & Streeter, of Kankakee, for defenddebtedness for the purpose of enabling a
ants in error. creditor to redeem. Kufke v. Blume, supra. The judgment may be recovered upon an in HEARD, J. March 9, 1921, Willard N. debtedness incurred subsequently to the ex- Bagby, while in the employ of plaintiff in piration of the debtor's period of redemp-1 error, received injuries resulting in his death. tion. Kerr v. Miller, 259 Ill. 516, 102 N. E. Defendants in error, William Bagby and Su1050. The right of the judgment creditor to sie Bagby, his father and mother, filed their redeem does not depend upon any lien on the application for compensation under the pro
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) visions of the Workmen's Compensation Act, knocked him down. Death followed in about of Illinois. (Smith-Hurd Rev. St. 1923, c. 48, an hour. Deceased was there waiting for $S 138–172). A hearing was had before an orders. arbitrator, who found that the applicants There can be no question but what the were entitled to receive compensation from business of operating a sawmill, such as the plaintiff in error for partial dependency and one described by the evidence in this case, is fixed the amount of such compensation. The an extra hazardous business, and ordinarily Industrial Commission affirmed the arbitra- the operator and his employees engaged in tor's award. The case was then taken to that business would come under the provithe circuit court of Kankakee county on sions of the Workmen's Compensation Act. writ of certiorari, where the decision of the It is claimed by plaintiff in error, however, Industrial Commission was confirmed, and that he is a farmer, and that he and the dethe record is now here for review upon writ ceased were exempted from the provisions of of error.
that act by reason of the provision therein At the time of the accident plaintiff in er- that "notbing contained herein shall be conror owned a tract of land of about 100 acres strued to apply to any work, employment or on an island in the Kankakee river, which, operations done, had or conducted by farmland he had purchased about three years be- ers and others engaged in farming, tillage fore that time. At the time of the purchase of the soil, or stock raising, or to those who the land was covered with timber with the rent, demise or lease land for any such purexception of about six acres, which had been poses, or to anyone in their employ or to cleared by the former owner. At the time any work done on a farm or country place, of the hearing there were 13 or 14 cottages or no matter what kind of work or service is cabins on the island which were used as sum- being done or rendered.” Smith's Stat. 1923, mer homes. Plaintiff in error had a house, $ 3, par. 8, p. 979. barn, chicken house, pigpen, shed, a team of [1, 2] It is not required by the Workmen's horses, 4 head of cattle, and 200 chickens on Compensation Act that one shall be exclusivethe island. During his three years' residence ly engaged in one of the hazardous occupaon the island, plaintiff in error had cleared tions enumerated in the act to make him liable from 20 to 30 acres, about 20 acres of which for compensation. A man may engage in two had been planted into corn between the kinds of business-one not within the Workstumps, which were from 10 to 20 feet a part. men's Compensation Act and the other may be He had an uninclosed sawmill at the margin within the act because it is extrahazardous. of the woods, which sawmill he used for saw Vaughan's Seed Store v. Simonini, 275 III. ing the logs obtained from cutting the timber 477, 114 N. E. 163, Ann. Cas. 1918B, 713; on the island, into railroad ties and lumber. | Davis v. Industrial Com., 297 Ill. 29, 130 N. The ties and lumber were sold to other par-| E. 333, 15 A. L. R. 732. While it was evities except a portion of the lumber which dently the intention of the Legislature that plaintiff in error retained. Some of plaintiff the Compensation Act should be construed in error's neighbors used the sawmill at largely in favor of farmers, yet it was also times for their own purposes. Deceased had the intention of the Legislature that the act for some time been in the employ of plain- should be construed largely in favor of emtiff in error to haul logs to and lumber from ployees. It cannot be said that because a the sawmill and at times assisted in placing man is a farmer that that fact, alone, erthe logs upon the frame of the saw to be empts him from the operation of the Worksawed. On the morning of the accident, de- men's Compensation Act where he engages ceased went with plaintiff in error, with a on his farm in an independent extrahazardhayrack, down to the west end of the island ous occupation which is within the terms of to take some lumber to a man who had a the act. It certainly could not be contended cabin there. At the time of the accident de that a man could own a large farm, operate ceased had left the team standing near the a mine or a large manufacturing industry, mill and was standing about 20 feet from it. and be exempted from the provisions of the The power was furnished to the mill by a act because such business was conducted upsteam motor. The steam engine was about on his farm. Operating a sawmill like the the size of a threshing machine engine. The one in question, operated in the manner in saws were about 4 feet in diameter. There which it was operated, is no part of the orwas a carrier about 25 feet long. At the time dinary business of operating a farm. We of the accident there was a large piece of are of the opinion that plaintiff in error and timber on the frame, and two boards were
the deceased at the time of the accident were sent through the saw to be finished. They both under the provisions of the Workmen's were cut from old wooden piling of soft Compensation Act. wood. When these two boards were sent
 It is claimed by plaintiff in error that through the mill, a workman started to take William Baghy and Susie Bagby are not them off the carrier, and as he went to let shown to have been dependent upon the de. them down they were caught by the saw and ceased. Bagby owned 152 acres of land and flew through the air and struck deceased and rented 200 more near Momence. Bagby's un
disputed testimony was that he was depend- | favor of person whose name was so substituted, ent upon deceased for support at the time in absence of publication after alteration. of his death; that they got their living from 4. Wills 306 – Will with name following the farin and depended upon deceased ; that
"my nephew" erased not probated. that was what got them along; that deceased
Where testator, who had six nephews, oblitcontributed of his earnings to the home; that erated, after publication of will, name of der. he got the benefit of the labor of deceased to isee follow words "my nephew," the will will make his living; that deceased did two-thirds not be probated, in absence of proof of nephof the labor on the farm; that witness has ew originally named; the failure to prove the had rheumatism for seven or eight years; name being a failure as to a material part of that plaintiff in error paid deceased weekly the will. wages, which were given to Susie Bagby; 5. Wills Ow290—Presumption that destruction that the wages always went into the items of by heir was beneficial to such heir is prefamily expense. Bagby testified that while sumption of fact only. deceased was working for him he never paid Presumption that destruction of will by him any wages but gave him his board, cloth- heir at law was beneficial to such heir is a ing, and some spending money. This evidence presumption of fact only, and not sufficient to consists almost entirely of conclusions and establish other person's claim that he had been not of statements of evidentiary facts. It originally named as sole beneficiary. does not disclose what receipts Bagby had 6. Wills 306–Evidence held insufficient to from the 352 acres which he was farming, or prove name of original devises erased by tes. what his disbursements were with reference tator, thereto. It does not disclose whether or not Evidence held insufficient to prove name of he had other property. His income and the original devisee erased by testator after pubamount of his expenditures are not shown. lication without publication after alteration. There is not sufficient competent evidence in the record upon which to base a finding of
Error to Circuit Court, Kankakee County, partial dependency within the meaning of Arthur W. De Selm, Judge. the Compensation Act.
Petition by William W. Cantway, for proThe judgment of the circuit court is re- bate of will of Noel Cantway, opposed by versed, and the cause remanded to the In- Dell Cantway and others. Petition denied dustrial Commission.
and petitioner brings error. Affirmed. Reversed and remanded.
Robert V. Baker, of Kenosha, Wis., and E. P. Harney, of Momence, for plaintiff in
Miller & Streeter and Granger, Nourie & (315 Ill. 244)
Granger, all of Kankakee, for defendants in CANTWAY v. CANTWAY et al. (No. 16109.) | error.
(Suprem Court of Illinois. Dec. 16, 1924.
DUNN, J. The circuit court of KankaRehearing Denied Feb. 6, 1925.)
kee county having denied the petition of Wil. 1. Wills 290 Testator presumed to have liam W. Cantway for the probate of an alsubstituted name of devisee for another with leged will of Noel Cantway, a writ of erintent to revoke will as originally made.
ror has been sued out to reverse the judgWhere will which remained in testator's ment. possession was found among his papers par Noel Cantway was a resident of Momence tially canceled by erasure of name of devisee in Kankakee county. He died on the 5th day and substitution of other name, the presump- of December, 1921. He was about 70 years tion is that cancellation and substitution were acts of testator, done with intention of revok
old, had never been married, and his heirs ing will as originally made.
were a brother, five sisters, and five nephews
and five nieces, who were the children of his 2. Wills Cw297(3), 305-Rule as to competen- deceased brother, Mitchell Cantway. He cy of declarations of testator in proving con
left property, real and personal, amounting tents of destroyed or lost will stated.
Evidence as to declarations of testator is to about $75,000. Administration was grantcompetent to corroborate direct evidence of wit- ed on his estate by the county court, and a nesses testifying from their own knowledge as nephew, Mitchell E. Cantway, was appointto contents of lost or destroyed will, but are ed administrator. Soon after, he and his atnot of themselves sufficient to prove contents torney, V. A. Parish, were searching for an of will.
abstract to get a correct description of the 3. Wills en 197—Will did not become effective real estate in order to make an inventory, in favor of substituted devisee, in absence of when they found in a bundle of Noel's papublication after alteration.
pers, which the administrator had brought Where testator after publication of will to the attorney's office, a will sealed up in erased name of devisee and substituted anoth an envelope, which Noel had executed on er's name, the will did not become effective in 1 January 10, 1889. The will was all in the
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes