Mann v. Mann , 49 Ill. App. 472 ( 1893 )

Opiniost of the Court,

Lacey, J.

The above statement gives an idea of the main facts of the case, and the findings of the master and the court, but it does not give the substance of the evidence. It was quite voluminous, and it is somewhat difficult to determine with precise accuracy what the real intention of Allen II. Mann, 'William T. Harrison and William Mann was, in the transaction of procuring’ the execution of the quit-claim deed from William T. Harrison to William Mann; it seems, however, pretty plain to us, that William Mann had but very little to say about, or had much to do in the negotiations, further than that he acquiesced in the deed being made to him and accepting it, but the law generally presumes in such cases, where the grantor of the greater interest deeds real estate to the holder of the lesser interest, that the title merges in the grantee, and in the case of a grantee holding a mortgage, and the grantor of the equity of redemption being a mortgagor, the legal presumption is that the mortgage debt is satisfied by the conveyance, and the grantee paid in full by the execution of the deed; but this presumption has many exceptions, and especially in case such a merger is a detriment to the holder of the mortgage. In this case, William Mann only received a title from William T. Harrison for an undivided one-half of the premises, and it would seem hardly equitable to hold on the facts, without further proof than the receiving a deed for an undivided interest from one of the makers of a joint note and mortgage, and owners of the equity of redemption, that there could have been an intention on the part of William Mann to accept such deed in full satisfaction of such debt, where his mortgage covered the entire title to the land. We think that the rule of merger, without further extrinsic proof of some agreement to that effect, could not be presumed to have been intended; at least as to the entire title and as to the entire debt. There is no evidence from any witness that William Mann agreed with Allen H. Mann to accept the quit-claim deed in full satisfaction of his entire debt. We think, however, considering the fact of the acceptance of the deed, and all other evidence, that it was the intention to accept William T. Harrison’s deed as an absolute title and not as a mortgage, for he already had a mortgage, and that he intended to release and accept it in satisfaction of one-half of his debt, but not to release Allen H. Mann’s half. Why should he release Allen II. Mann’s half, when the half interest he was purchasing was not worth his entire claim, and when he could get William T. Harrison’s undivided half for less ?

There is another question in the case which we have considered with some care, and that is whether Allen H. Mann is entitled to a credit on his note for the 8000 which he paid William T. Harrison, in order to induce him to execute the quit-claim deed to William Mann. We are of the opinion that he is not entitled to such credit; it seems that Allen H. Mann and William T. Harrison, up to that time, had been farming the land in partnership, and that they had failed to agree any longer, and George Harrison was threatening to foreclose his mortgage. In order, as we think, to get the full possession of the farm, and to settle matters, he was willing to pay William T. Harrison that amount on his own account, to have the quit-claim deed executed. It appears from the evidence, that William Mann was never consulted as to whether he would allow such payment on his note. He was only asked to accept the deed, which he did; it was no particular benefit to him, so far as the mortgage was concerned, to accept a one-half interest in the deed for one-half of the debt and pay 0600 besides, when an undivided half, subject to incumbrances, was not worth more than half his mortgage. We think, therefore, that Allen H. Mann is not entitled to that credit; no credit of the kind was asked to be given or entered on the mortgage at the time, or since. William Mann was an old man at the time, and did not appear fully to realize the nature of such business transactions. We think the finding of the master and the court that no accounting, between William Mann and Allen H. Mann concerning the support furnished William Mann and his wife, and any claim of William Mann for services, need be had, for it was intended that each should be furnished gratis.

The surplus remaining, after paying off the amount of the decree rendered in the original case, should be distributed as follows, to wit:

1st. William Mann should be paid one-half of his entire note and interest held against the land and secured by his mortgage given by Allen H. Mann and William T. Harrison, according to its terms and without deductions on account of any counter claim of Allen H. Mann, and the court may refer the case to the master to compute the amount due.

The said note is not subject to any off-set on account of the payment of any interest by Allen H. Mann on prior mortgages given by him, for it was his duty as maker of all the notes and mortgages, to pay each when due, and it relieved the land for the benefit of junior mortgagees of so much prior indebtedness and liens. Nor is he entitled to any abatement by reason of any expenses incurred for betterments, taxes and insurance, for it was his duty to pay the taxes on the land, and he had a right to keep the property insured for his own benefit, and the buildings thereon. An ■ existing mortgage would attach to all betterments as soon as made.

■ 2d.' If any surplus remains after the payment of the last described mortgage and interest, it should be equally divided between Allen II. Mann and William Mann, as tenants in common of the land, each owing an undivided one-half interest; in that case, an account should be stated between them, in regard to such last mentioned surplus, if any exist. Allen H. Mann should be charged with one-half of the net income received from the premises, -while in the occupation of them from the date of the quit-claim deed to William Mann, and credited with one-half of the expenditures for valuable and lasting improvements put on the same by him, while in occupation during the same time. He should also be credited with one-half of the interest paid by him on the Hollister and George Harrison mortgages, after the date of the said quit-claim deed from William T. Harrison to William Mann; and upon such account being stated, the one entitled to the balance should have suck balance deducted from the other’s one-half of such last named surplus. In case it becomes necessary, on account of any surplus, to settle the account last above named, the court should refer the case to the master in chancery, or to a special master, if one be appointed to take the evidence, and state the account on the basis above named. And upon the master or special master’s report, if such report be correct, tho court shall enter a decree accordingly. The court should also dissolve the injunction heretofore granted, prohibiting the prosecution of the common law suit of William Mann v. Allen H. Mann and IV illiam T. Harrison, as to one-lialf of the note and interest sued on, and make it perpetual as to the balance.

The decree of the conrt below in this, the cross-bill, for the reasons above indicated, is hereby reversed, and the cause remanded to the court to settle the equities of the parties according to the principles indicated in this opinion. [Reversed and remanded.