Irwin v. Brown

Waterman, P. J.

It is distinctly stated in the contract of settlement made between Paulsen and Mrs. Brown, in pursuance of ivhich the mortgage in question ivas executed, that she is to receive a mortgage which is to be a valid and first lien, save as to the mortgage made by Augusta Paul-sen.

A mortgage executed by Mrs. Irwin, upon the interest of Paulsen only, would have been of doubtful validity, and if valid, would not have been a first lien. It would have been of doubtful validity, because the title to Paulsen’s interest ivas, by virtue of the conveyance theretofore made by Mrs. Irwin, in him, Paulsen, and only by way of estoppel could the mortgage have been of any effect; if the mortgage had, by Avay of estoppel, operated as a conveyance of Paulsen’s interest, it Avould have been postponed to the lien acquired by Wiemers under his judgment and creditor’s bill against Paulsen, and would also have been subject to the dower interest of Mrs. Paulsen, who hacl not joined in the conveyance by him made to Mrs. Irwin.

That Mrs. Brown should have been willing to accept so doubtful a security, in place of the valid and first lien to which she was entitled, is improbable, and that Mr. Babbage, an experienced solicitor, who was acting for her, should have consented to receive so imperfect a lien is incredible.

All previous negotiations are presumed to have been merged in the agreement of June 25th; the mortgage thereunder given is consistent with the agreement, and whatever may have been the understanding of Mrs. Irwin as to what she was doing when she executed that instrument, unless Mrs. Brown had the same understanding, the instrument must be held in accordance with its terms to convey the undivided one-third of the property therein described; the only undivided third of that property which Mrs.1 Irwin then had, was that which she inherited from her mother; the third which her brother had once conveyed to her, she had reconveyed to him long before she executed this mortgage. We think that the evidence fails to show that either Mrs. Brown or Mr. Babbage had any understanding that there was only being pledged the incumbered interest which Mr. Paulsen had once conveyed to Mrs. Irwin.

The alleged agreement for a release, dated Aov. 11, 1886, Mrs. Brown denies that she ever executed. If she made such an instrument, entirely for the bene (it of her nephew, by which she promised, for no valuable consideration, to give him his note for §12,500 and to release at his request the Mortgage securing the same, why did he not retain the instrument, or at least a duplicate original thereof ? The burden of proving the execution of this document was upon him; his oath is opposed by that of the complainant. The testimony of Mr. Judd, and that as to the acknowledgment by Mr. ITawkinson, we do not regard as being more than to the effeQt that they saw Mrs. Brown and Mr. Paul-sen sign some instrument.

It is not so difficult to rub out and reprint the words of a typewritten instrument, such as this was, as that the mere fact of one’s name being found appended thereto ought to outweigh all the evidence existing in this case that Mrs. Brown did not sign this agreement to surrender and release.

The alleged agreement to release is, moreover, not such a one as we think a court of equity would enforce. There is no valid consideration for the agreement Mrs. Brown is said to have made. Neither her desire to protect his interests, or his promise to pay his note to her, or her fear that if she bequeathed to him his note her “ will might not hold good,” or any previous nudum pactum to “ hold his note until maturity and then give it gratis to him,” would constitute a valid consideration for a promise by her to him. Gardner v. Watson, 13 Ill. 347-352; Waters v. Simpson, 2 Gilm. 570-576; Constantine v. Wells, 83 Ill. 192; Anson on Contracts, 71; Eastwood v. Kenyon, 11 A. & E. 438; Wennall v. Adney, 3 B. & P. 249.

The evidence offered by appellant upon this matter, which the court refused to receive, was merely to the effect that there were considerations for the agreement, in pursuance of which the mortgage was made, not set forth in the agreement, and that because of these she executed the alleged agreement to release.

Mrs. Brown has fully performed her part of the agreement for the mortgage, and if there were moral considerations which might have induced her to make the alleged agreement for a release, such fact would not, with all else herein shown, constitute sufficient evidence of execution in the face of her positive denial that she did execute such agreement to release.

Counsel for appellants urge the impropriety of selling Mrs. Irwin’s property to pay Mr. Paulsen’s debt, when, as they say, Mrs. Irwin only intended to mortgage Mr. Paul-sen’s interest; but they fail to explain' why, if Mr. Paulsen’s interest is available and ample as a security for his indebtedness, he did not so set forth and offer to turn it out in the cross-bill by him filed, or why Mrs. Irwin did not by cross-bill insist upon having the interest of Paulsen first sold for the satisfaction of this indebtedness.

It may be unsatisfactory to ajipellants, but it was not error for the court to fail in its decree to give any reason for the dismissal of the cross-bill filed by Paulsen, other than that it was for want of equity.

We find in this record no error requiring a reversal of the decree of the Superior Court, and it will be affirmed.

Decree affirmed.