Lawrence County IL Archives Court.....Geines, Thomas Selby V Philip 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 18, 2008, 2:05 am

Source: Reports Of Cases
Written: 1850

Thomas Selby, plaintiff in error, v. Philip Geines, defendant in error.

Error to Lawrence.

Relief will not be granted upon a bill where the answer denies the allegations 
of the bill, if the proof is loose and unsatisfactory.(a)

The bill of complaint filed in this cause by Geines, shows that he was 
indebted to Selby in December, 1842, in the sum of $200, on a note drawing 
twelve per cent interest, which Selby wished to have secured by a mortgage on 
a farm, which was agreed to be given upon the conditions, that if Selby should 
attempt to enforce payment by foreclosure, that the land should be sold in a 
body, after it had been appraised by three disinterested individuals, and 
provided it brought two-thirds of its appraised value. That it was agreed by 
Selby that these conditions should be inserted in the mortgage, and that 
instructions were given to the person who drew the mortgage, to insert them, 
but that they were omitted, that Geines not being able to read the English 
language, misunderstood its terms. That both parties supposed the valuation 
laws were then in force, but their constitutionality being doubted, it was 
believed that the insertion of the terms of the law in the mortgage would be 
binding. That Selby attempted to foreclose his mortgage in 1846, when Geines 
obtained an order from the court, directing that Selby should comply with the 
above conditions; that thereupon Selby dismissed his bill, and obtained a 
judgment upon the note by a suit at law, and is seeking to evade the terms of 
the mortgage, by selling the land upon execution without appraisement, which 
proceeding this bill prays may be enjoined. A master in chancery allowed the 
injunction.

Selby's answer admits the indebtedness of Geines, the recovery of the 
judgment, the attempt to sell upon execution, but denies the other charge in 
the bill, and insists that the mortgage contains all that the parties agreed 
upon, and truly sets forth the contract, and concluded with a prayer for a 
dissolution of the injunction.

The testimony on the part of Geines shows that there was some dispute between 
himself and Selby, as to what the mortgage should contain. Geines insisted 
upon the insertion of the conditions, and Selby refused to admit them, but 
that the party who drew the mortgage is not certain whether it contained 
precisely the conditions insisted upon by Geines, but that he insisted that 
they should be there, and that he executed the mortgage with that 
understanding.

The testimony on the part of Selby shows that the money was loaned, upon the 
condition that its payment should be secured by mortgage, without such 
conditions as Geines pretends; Geines observing at the time, that real estate 
in Illinois was the same as personal property in Ohio, that it could be sold 
for anything that was bid for it; that Selby should have a mortgage on lands 
and chattels worth $1,200, and that it would at any time sell for enough to 
pay the debts of Geines.

At the September term, 1850, of the Lawrence Circuit Court, the injunction was 
perpetuated by Harlan, Judge, and a decree entered, directing the sale, en 
masse, of the lands mortgaged, after the same shall have been appraised, etc., 
etc. To reverse this decree Selby sued out this writ of error, and assigns for 
error the perpetuation of the injunction, and the decree directing that the 
lands shall be appraised, etc., etc.

C. Constable and A. Kitchell, for plaintiff in error:

The plaintiff in error had a right to pursue his remedy at law on his note, or 
by foreclosure of the mortgage, or both at the same time, and defendant had no 
right to set up the mortgage in restraint of the judgment, or compel him to 
collect it out of the mortgaged land only: Dunkley v. Van Buren, 3 John. C. 
R., 330; Jackson v. Hull, 10 John. R., 482; Delahay v. Clement, 3 Scam., 203.

The bill was insufficient, because the complainant had no right to change the 
terms of the mortgage by parol evidence. There is no pretense of fraud, and 
there is no such mistake shown as entitles the complainant to change the 
mortgage by parol evidence: 1 Greenleaf's Ev., secs. 276, 282.

The testimony of one witness is not sufficient to overthrow the answer of 
defendant: Gresley's Eq. Ev., 4, 5; Greenleaf's Ev., sec. 206.

U. F. Linder and J. G. Bowman, for defendant in error.

Treat, C. J. The bill sets up, as the ground for relief, an express agreement 
of the parties—omitted by mistake to be inserted in the mortgage—to the effect 
that the mortgaged premises, in case of default in the payment of the note, 
should not be sold unless they would bring, en masse, two-thirds of the 
appraised value. The answer denies the allegation, and insists that the real 
agreement of the parties is correctly set forth in the mortage. The proof is 
altogether too loose and unsatisfactory to justify a decree reforming the 
mortgage, by the introduction of the provision alleged to have been omitted. 
At most, it only shows that the complainant was very anxious that the 
provision should be incorporated in the mortgage, and contended that such was 
the agreement of the parties, while the defendant insisted that no such 
agreement had been made. The mortgage was then drawn in the usual form, and 
executed by the complainant. It may, perhaps, have been his impression at the 
time that the mortgage contained the condition in question, or that the legal 
effect of the instrument would be what he desired, but there is no 
satisfactory proof of fraud or unfairness in the execution, or that it did not 
embrace all of the stipulations actually assented to by both of the parties. 

The decree of the Circuit Court will be reversed, and the bill dismissed, with 
costs.

Decree reversed.

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(a) Relief will only be granted upon clear and satisfactory proof: Harris v. 
Reed, 5 Gil., 212; Ruffner v. McConnel, 17 Ill., 212.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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