« AnteriorContinuar »
reach a small portion of her lands. On November 21, 1907, the parties entered into a further agreement, as follows:
"This agreement, executed in duplicate this 21st day of November, 1907, between Ida M. Kelsey and Mary Clausen, both residents of the town of Cortland, in the county of DeKalb and State of Illinois, witnesseth:
"The parties hereto, being the only heirs-at-law of Sabrina Joslyn, deceased, have heretofore agreed upon a mutual partition of the lands owned by the said Sabrina Joslyn at the time of her decease and a survey thereof has heretofore been made. By reason of the proposed construction of a drainage ditch by the commissioners of Union Drainage District No. 1 of the towns of Cortland and Pierce, in DeKalb county, across the lands owned by the parties hereto, a re-allotment of the said lands has this day been agreed upon. The said Mary Clausen shall convey to said Ida M. Kelsey all her right, title and interest in and to the south half (%) of the north-east quarter (4) of section thirty-three (33) and so much of the north-east quarter (4) of said north-east quarter (4) as shall lie south of the south bank of said proposed drainage ditch, and in addition thereto so much of the west half (%) of the north-west quarter (4) of section thirty-four (34) as will, together with the lands in said section thirty-three (33), make a total acreage of one hundred sixty (160) acres, all of said real estate located in township forty (40), north, range five (5), east of the third principal meridian, in the township of Cortland, in said DeKalb county. The said Ida M. Kelsey shall convey to the said Mary Clausen all of her right, title and interest in and to the lands owned by the said Sabrina Joslyn at the time of her decease, except so much thereof as is above described and which is to be held and owned in severalty by the said Ida M. Kelsey. "Witness the hands and seals of the parties hereto the date first above written. IDA M. KELSEY, (Seal) MARY CLAUSEN. (Seal)" describing the lands to be
It will be noted that after conveyed to appellee, this second agreement provides that appellee "shall convey to the said Mary Clausen all of her right, title and interest in and to the lands owned by the said Sabrina Joslyn at the time of her decease, except so much thereof as is above described." Appellant contends that under the clause last above quoted from the contract of November, 1907, she is entitled to all of the real estate of which her mother died seized except that specifically de
scribed in the second agreement. Appellee contends that the second agreement had no reference to the town lot, and that she is entitled to it under the proper construction of the two instruments. The court below sustained appellee's contention and awarded her a decree for the conveyance of the undivided interest of appellant in the city lot.
Appellant contends that the second instrument was an entire contract and completely superseded the first agreement. We cannot give our assent to this view. A careful reading of the second agreement will clearly show that it had no relation to the village property. It refers to the former agreement, and recites that the parties "have heretofore agreed upon a mutual partition of the lands owned by the said Sabrina Joslyn at the time of her decease, and a survey thereof has heretofore been made." The reference to "lands," a survey of which had been made, clearly referred to the farm lands. There had been no survey of the town lot nor was there any necessity for a survey. The agreement next recites that by reason of the construction of a drainage ditch "across the lands owned by the parties. hereto, a re-allotment of said lands has this day been agreed upon." The drainage ditch crossed the farm lands and had nothing to do with the town lot, and it was by reason of the drainage ditch being located upon the farm lands that "a re-allotment of said lands" had been agreed upon. Keeping in mind the subject matter of this second contract as the same clearly appears from the face of the instrument, the intention of the parties as to what each was to have is clear enough. The contract, after describing the portion of the land that was to be conveyed to appellee, provides that appellee shall convey to appellant "all of her right, title and interest in and to the lands owned by the said Sabrina Joslyn at the time of her decease, except so much thereof as is above described," etc. The word "lands" in this clause of the agreement was intended by the parties to include all of the farm lands owned by their mother at the time of
her death, except 160 acres that was specifically described in the agreement and which was set apart for the appellee. The effect of the second agreement was merely to change the boundary line between the parties as to the farm lands so as to make it conform to the banks of the drainage ditch. The second agreement did not supersede the first entirely, but operated merely as a modification of it as to the division line. Under the two agreements, construed as one contract, appellant received about 184 acres of farm lands unencumbered, while appellee received 160 acres of farm land and the house and lot subject to an encumbrance. These two instruments being executed between the same parties and relating to the same subject matter, are to be read and construed as constituting a single transaction. (Wilson v. Roots, 119 Ill. 379; People v. Economy Light and Power Co. 241 id. 290.) The court below construed the two instruments together, and held that the first agreement controlled as to the house and lot, which is the only property involved in this litigation. In this we think the court below was clearly right.
The lawyer for the drainage district who wrote the second instrument, and the surveyor who made the survey, testified to conversations and transactions in connection with these contracts. Appellant complains that this was an improper use of parol evidence, on the ground that it tended to vary the terms of the written instrument. This is a misapprehension. There is nothing in the evidence of these witnesses that in any way tends to contradict or vary the terms of the written instruments. The only object of this evidence, and that was the extent to which it went, was to show the circumstances and the object the parties had in view, for the purpose of enabling the court to properly construe the instruments in the light of the circumstances under which they were drawn, and for this purpose parol evidence is admissible. Gardt v. Brown, 113 Ill. 475.
Appellant also assigns error on the action of the court in proceeding to a final hearing upon the original bill before the cross-bill was ready for hearing. It is within the discretionary power of the chancellor to postpone the hearing upon an original bill until the cross-bill is ready, so that they may both be heard together. But the filing of the cross-bill, which is a matter of right, does not necessarily stay the hearing upon the original cause. (Beauchamp v. Putnam, 34 Ill. 378; Quick v. Lemon, 105 id. 578.) Where a defendant desires to file a cross-bill in a chancery proceeding he should act with due diligence and file the same without unreasonable delay, with a view to having it heard with the original bill. (Fread v. Fread, 165 Ill. 228.) In the case at bar the cross-bill was not filed until about three years after the original suit was commenced, and at the time it was filed the evidence had all been taken and the master's report prepared, ready to be submitted to the court. Under such circumstances there was no abuse of the discretion of the chancellor in proceeding to a final hearing upon the original bill before the cross-bill was ready.
Appellant insists that there is no proof that appellee demanded a deed to the house and lot from appellant before filing her bill. The master found that appellee had made, executed and delivered to appellant a deed to all of the premises to which she was entitled under the agreement. Having fully performed the contract on her part appellee was entitled to a conveyance from appellant of her undivided interest in the village lot. Where a party has fully performed a contract on his part and is entitled in equity. to call upon the other party to perform, the only purpose a demand can serve is to give the defaulting party an opportunity to comply with the contract without the cost of litigation. When the bill was filed, had appellant tendered a deed to her interest in the town lot and asked that the bill be dismissed at the cost of appellee the court would no
doubt have sustained the motion. But appellant's course has been quite different from that. She has contested appellee's right at every step, and insists that she is entitled to a conveyance from appellee for the premises involved. It was not indispensable to appellee's right to file a bill to go through the useless form of asking appellant to execute a deed, which would have been followed by a refusal. Under the facts in this record the commencement of the suit without making a demand for a deed does not require an apportionment of the costs, much less a reversal of the decree.
Finding no error in this record the decree of the circuit court of DeKalb county is affirmed.
EMANUEL RICHTER, Defendant in Error, vs. MARGERY BURDOCK, Plaintiff in Error.
Opinion filed February 20, 1913.
1. USURY-usury which is paid under compulsion may be recovered. One who voluntarily pays usury cannot compel its repayment to him, but the law is otherwise where the payment is made under compulsion.
2. SAME when payment of usury is under compulsion. Where one gives a judgment note to a money lender for the amount of the loan and an usurious charge, and the note is assigned to an innocent purchaser, who enters judgment on the note, the payment of the judgment must be regarded as a compulsory payment of the usurious charge, and the maker of the note may recover the amount of such charge from the money lender.
3. SAME an action at law may be maintained to recover money paid as usury. The maker of a note who is compelled to pay usury may recover in an action of assumpsit the amount so involuntarily paid, and is not obliged to resort to a proceeding in equity.
4. CONSTITUTIONAL LAW-when court may refuse to consider constitutionality of statute. Where a statute has long been treated by the courts as constitutional and important rights have been based thereon, the court may thereafter refuse to consider its constitutionality.