Carr v. Fielden

Skinner, J.

In 1844, Fielden filed his bill in equity against the heirs of Reavis and others to foreclose a mortgage. The bill alleges the execution of the mortgage by Reavis to Fielden in 1842, to secure the payment of a promissory note concurrently therewith executed and payable on the 25th day of December, 1843; that Reavis died in August, 1843, leaving eight of the defendants his heirs at law, seven of whom are infants; that the mortgage debt remains due and unpaid; that at the time of the execution of the mortgage it was in writing agreed, that Reavis should sell and convey unto Fielden a certain farm, including the mortgaged lands, at seven dollars and a half per acre, the mortgage debt to be treated as the first payment therefor, and the balance to be paid at a future time with interest; that Fielden should have possession under the contract of certain portions of the land, and that, if Fielden should, on or before the 20th day of December, 1843, conclude not to take the farm he should have the right so to do, and in case of Fielden rescinding the contract of sale, as provided, the possession of the land, and some other things named, should operate as satisfaction for the use of the money seemed by the mortgage; that Fielden did, on or before the 25th day of December, 1843, conclude not to take the farm and notified the administrator of Reavis (one of the defendants), to that effect.

A guardian ad litem for the infant defendants was appointed and put in an answer substantially admitting the allegations of the will. The court rendered a decree in favor of Fielden for the mortgage debt, barring all equity of redemption, and directing a sale of the mortgaged premises to satisfy the decree and costs.

So far as the record shows, this decree was made without any proof of the execution or existence of the promissory note, ór of the allegation of rescission of the contract of sale.

The debt secured by the mortgage could not have been enforced without a rescission of the contract of sale, and this depended upon the election and act of Fielden. The execution of the note, mortgage and contract were simultaneous, and formed one transaction. It was necessary, therefore, for Fielden to prove a rescission of the contract of sale on or before the 25th day of December, 1843, and something more than a mere act of the will, on his part, was necessary to constitute such rescission. The party in interest should have been notified of his election to rescind, and have been afforded an opportunity of obtaining possession of the land he had got possession of under the contract. The promissory note should also have been produced and proved as evidence of the mortgage debt, and without which the mortgage deed, the incident, would be of no force.

It has often been held by this court that full proof is necessary in equity proceedings against infants, no matter what answer may be made for them by their guardian ad Utem, and that the record must in some way contain and preserve such proof, so that upon inspection of the record the facts appearing shall justify the decree against them. McClay v. Norris, 4 Gil. R. 370; 11 Ill. R. 255; 11 ibid. 260; 15 ibid. 10; 16 ibid. 354; 17 ibid. 602.

Decree reversed and cause remanded.

Deoree reversed.