Morgan County IL Archives Court.....Hollowbrush, V McConnel 1850
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:24 pm

Source: Records Of Cases Illinois
Written: 1850

Thomas Hollowbush et al., plaintiffs in error, v. Murray McConnel et al., 
defendants in error.

Error to Morgan.

The only mode by which the final decision of a case in the Supreme Court can 
be reversed or set aside, at a subsequent term, is by petition for a 
rehearing. (a)

This cause has been before this court on several different occasions, and will 
be found reported in 4 Gilman, p. 511, and in 11 Illinois, p. 61, from which 
all the facts in the case can be ascertained. The present writ of error was 
issued to the Morgan Circuit Court, and by agreement errors were assigned by 
both parties. The decree in the Circuit Court was at September term, 1850, 
Woodson, Judge, presiding.

D. A. Smith and A. Williams, for plaintiffs in error.

M. McConnel, pro se.

Trumbull, J. This case was before the court a year ago, and all the legal 
questions involved in it were then settled: 11 Ill., 61.

The case was remanded, for the purpose of ascertaining the value of the rents 
and profits of the premises in question, and also of the improvement erected 
thereon; if it could be shown to be for the benefit of the estate, and to have 
been made in good faith. After an amendment of the pleadings in the Circuit 
Court, so as to present the question of the improvement, the case was referred 
to a master to state an account. The appellee filed exceptions to portions of 
the master's report, which were overruled and the report approved. Whereupon a 
final decree was entered, from which an appeal has been taken by the 
defendants below, and in this court, by consent, both parties have assigned 
errors.

The appellants complain, that the Circuit Court erred in decreeing, that the 
appellee had the right to redeem the mortgaged premises, and in allowing him 
anything for the rents and profits of the Naples ferry.

Both these questions were substantially settled when the case was here before. 
The first one was the very point then decided, and the court has now no power, 
if it had the inclination, to reverse that decision. There is no mode provided 
by law, except it be upon a rehearing, whereby the final decision of a case in 
this court can be reversed or set aside at a subsequent term. 

There must be an end of litigation somewhere, and there would be none if 
parties were at liberty, after a case had received the final determination of 
the court of last resort, to litigate the same matter anew, and bring it again 
and again before the court for its decision: Washington Bridge v. Stewart, 3 
Howard, 413; Booth v. Commonwealth, 7 Metc., 286. Waiving, however, for the 
moment, the former decision establishing McConnel's right to redeem, which 
cannot now be legally questioned, we will for the sake of the counsel who has 
argued against this right with such evident sincerity, briefly re-state the 
grounds of that decision.

The case has been treated as if it were a bill to redeem, after foreclosure 
and sale of the mortgaged premises by the mortgagee. Such is not the fact. The 
sale made was set aside, and the decree reversed under which it was made. 
Before the time for making the sale under the last decree arrived, this bill 
was filed. The right of the mortgagor, or his grantee, to pay off the mortgage 
and redeem the premises before the day arrives when, by the decree, the sale 
is to be made, cannot surely be questioned. The real question is, whether, in 
redeeming, McConnel, under the peculiar circumstances of this case, has the 
right to claim, as a credit upon the mortgage, the value of the rents and 
profits of the mortgaged premises while in possession of the appellants. If he 
has that right, it is upon the ground alone that he could not avail himself of 
it as a defense against the bill to foreclose.

What are the facts? In 1844 a decree is entered that the mortgaged premises be 
sold. The sale takes place, and they are purchased by the assignee of the 
mortgagee; claiming under whom the appellants, in 1845, take possession of the 
mortgaged premises, including the Naples ferry, and continue to receive the 
rents and profits thereof till 1848, when the decree entered in 1844 is 
reversed, and the sale under it set aside by a decision of this court: 
Manchester v. McKee, 4 Gil., 511. The Circuit Court to which the cause was 
remanded, without opening the case so as to afford McConnel, the grantee of 
the mortgagor and a defendant in that suit, an opportunity to present any 
defense that had arisen after 1844, when the case was set for hearing, entered 
another decree directing a sale of the mortgaged promises, in default of the 
payment of the sum due in ninety days, consequently it was out of McConnel's 
power to show in that case that the present appellants, who are the assignees 
of the mortgagee, had been in possession of the mortgaged premises (receiving 
the rents and profits), from 1845 to 1848, and that thereby the mortgage had, 
in fact, been paid. No such defense existed in 1844, when the case was set for 
hearing, and the decree then entered was never afterwards opened, so as to 
allow McConnel to interpose it. Why, then, should he not be allowed, at any 
time before the decree of 1848 was carried into effect, to show that 
circumstances had occurred, after the case was set for hearing, that amounted 
to a discharge of the sum for which the decree was rendered? Admitting the 
allegations of his bill to be true—and McConnel certainly had rights—how, 
under the peculiar circumstances of this case, was he to avail himself of 
them, except by filing a new bill-not as has been alleged for the purpose of 
undermining or setting aside former decree, but for the purpose of bringing 
before the court facts that arose after the former case was heard, and showing 
that the amount due by the decree then entered had been partly or wholly paid? 
From the necessity of the case he must have had the right to file such a bill.

The appellants next object that they are improperly charged with the rents and 
profits of the Naples ferry, because, as they say, it constitutes no part of 
the mortgaged premises.

After both parties have all along, during this protracted controversy, treated 
the Naples ferry as appertaining to the mortgaged premises—the complainant 
alleging in his bill, that the defendants, claiming as purchasers under the 
mortgage, had taken possession of the land and ferry, and the defendants, in 
their answer, admitting the possession, and speaking of the ferry as 
appertaining to the mortgaged premises—after this court had acted upon this 
understanding of the parties in its former disposition of the case, it is now 
too late for the appellants to insist, for the first time, that the ferry 
constitutes no part of the premises which the appellee is seeking to redeem.

No such objection was urged when the case was here before, nor was it then 
pretended that McConnel was not entitled to an account of the rents and 
profits of the ferry, in case he was permitted to redeem. In fact the very 
foundation of his case, as it now stands, the appellants having been shown to 
be solvent, depends upon their receipt of the rents and profits of the ferry, 
which was the only income derived from the premises. The amount of waste, 
shown to have been committed by the appellants, is so small, being but twenty 
dollars, that it would not of itself justify the maintenance of a suit of this 
character, in reference to property so valuable.

This court, then, in deciding that McConnel had the right to redeem, 
necessarily passed upon the question of his right to claim the rents and 
profits derived from the ferry by the appellants, while in possession of the 
same, and we are not now at liberty to re-investigate that question. The 
appellee, in his assignment of errors, asks to have the decree modified in 
various respects. He complains, that appellants are not charged with the rent 
of the ferry from 1843 instead of from 1845; that too small a sum according to 
the evidence, was charged against them for the profits of the ferry, while 
they had possession; and that they ought not to have been allowed at all for 
the warehouse. 

According to the former decision of this court, the appellants were only 
chargeable with the rents and profits of the ferry from June, 1845, and that 
was manifestly the proper time from which they should have been charged, 
because that was the time when they took possession, under their purchase, 
from the assignee of the mortgagee, and it is only because they got possession 
of the ferry by virtue of their claim of title, derived from the mortgagee, 
that they are to be charged with the rent of the ferry at all in this suit.

It is difficult, or rather impossible, to determine from the evidence in the 
record, what the precise value of the ferry per annum has been since 1845. The 
testimony upon that point is contradictory, and some of it not very pertinent.

Upon the whole, we are not prepared to say, that the master erred in his 
report upon that subject.

The warehouse is shown, by the evidence, to have been a judicious improvement, 
put upon the premises by the appellants, in good faith, when they supposed 
that they were the owners of the land, and according to the previous decision 
of this court they were properly allowed for its erection.

The decree of the Circuit Court is affirmed.

Decree affirmed.

--------------------
(a) Cook v. Norton, 60 Ill., 285; Boggs v. Willard et al., 70 Ill., 315; 
Kingsbury v. Buckner, Id., 514, accord.

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.

File at: http://files.usgwarchives.net/il/morgan/court/hollowbr114gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 10.4 Kb