Strong v. Hart , 1898 Ill. App. LEXIS 772 ( 1899 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is contended that the note secured by the trust deed sought to be foreclosed was without consideration.

In the view we take of the transaction we do not deem ' it necessary to discuss the questions raised in the briefs as to the effect of these receipts in connection with what ivas said and done in releasing or discharging the obligation of the note.

The original exchanges of property were not between the plaintiffs in error and John W. Hart, but Mary E. Hart, his wife. The property conveyed to Strong was conveyed by Mary E. Hart and the property conveyed by Strong was conveyed to her. When the reconveyances were made the parties were put in statu quo, each receiving back what they had respectively originally owned. But John W. Hart demanded the execution of this $1,200 note secured by the trust deed for his own use and benefit, as a condition of permitting his wife to reconvey and accept the reconveyance from the Strongs, or of consenting thereto. It appears, therefore, that the note in question was not given to Mary E. Hart as a consideration for rescinding the bargain, but as a donation to John W. Hart, extorted not as a consideration for value received by Strong from Mary E. Hart in making the reconveyance, but as the only alternative to prevent the entire loss of the property. Ho actual consideration appears to have passed from John W. Hart to the Strongs. The defendant in error, Mary E. Hart, claims to now own the note in question as assignee of her deceased husband. She does not claim that the note was given to him as her agent in consideration of the reconveyances made. Her title comes only through him and the only consideration given by him was his consent, or his withdrawal of opposition, to the re-exchange. He conveyed an inchoate right of dower in one piece of property, but acquired the same right in other property in return. This was not such consideration as the law regards sufficient, under circumstances such as then existed between the parties, for a note of this amount. It is to the credit of Mr. Hart that he himself recognized the lack of consideration, the injustice of attempting to collect the note, and sought to right the wrong while it was still in his power to do so. Of this, the receipt signed by him in person furnishes, in connection with the circumstances, satisfactory evidence. That receipt, we think, was intended by Hart to evidence the fact and is an admission by him that the $1,200 note was not justly due him and was without consideration. Nor does the fact that Mary E. Hart now claims to hold the note and trust deed for a good consideration, and as assignee of her deceased husband, give her any additional right, as the facts now appear. The note to her husband was given at the time and in connection with the transaction between herself and the Strongs. It became incumbent upon her to show what right, if any, she has. She is seeking now to foreclose the trust deed.

“ The uniform holding in this State is, that a mortgage is a mere chose in action, and when the powers of a court of equity are called into activity to enforce it, relief will be denied if there are equitable reasons why its power should be withheld, or if in equity and good conscience the relief asked should not be granted.” Scott v. Magloughlin, 133 111. 33.

The judgment of the Circuit Court is reversed and" the cause remanded.