Kerr v. South Park Commissioners

Mr. Justice Matthews

delivered the opinion of the court.

The subject-matter in litigation in this cause is embraced in the decree between the same parties just affirmed, which settles the whole controversy between them.

In the present suit, the bill of complaint was filed by the South Park Commissioners, who, in pursuance of negotiations with Kerr, had advanced certain sums of money to enable the latter to protect his title to a part of the lands taken for the purposes of the park, and, as security for the same, took an assignment of certain encumbrances by way of mortgage or deed of trust upon the premises, but in fact intending that the money so advanced should be treated as a payment on account of the value of the lands of Kerr taken by them for public uses. Notwithstanding that, the present suit ivas pressed to a decree for the foreclosure of the lands covered by the deed of trust, and a strict foreclosure in substance was decreed, by directing that, unless the representatives of Kerr repaid to the complainants the amount of their advances, the trustee holding the legal title to the premises in controversy should convey them to the complainants on payment of a further small sum of $3454.17. •The present appeal is from this decree.

In the cause jhst disposed of, the same advances made by the South Park Commissioners are allowed to them in the decree as credits on account of payment of the value of the whole tract of one hundred and eleven acres, which, of course, is inconsistent with the decree now complained of.' That decree is accordingly

Reversed, <md the cause.is remanded for further proceedings m conformity with equity and.justice a/nd not inconsistent with this opinion.