Morgan County IL Archives Court.....Merrill, Vs Elliott 1893
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Deb Haines ddhaines@gmail.com April 19, 2006, 3:29 pm

Source: Il Appellate Court Cases 1893-1894
Written: 1893

Benson H. Merrill v. Frank Elliott.

pages 34-38


1. Variance-Description of Note in Mortgage.-A promissory note secured by a 
mortgage provided for interest, at the rate of seven per cent per annum after 
date, payable annually. The mortgage described the note as bearing 
interest "from due until paid" but from subsequent recitals it might be 
inferred that the note bore interest from date. It was held that the note was 
properly described in the mortgage.

2. SAME.-Objection-When Made.-The objection that there is a variance between 
the allegations of the bill and the proof, must be first made in the court 
below; it comes too late in the Appellate Court.

Memorandum.-Bill to foreclose mortgage in the Circuit Court of Morgan County; 
the Hon. CYRUS EPLER, Judge, presiding. Decree for complainant; appeal for 
defendant. Heard in this court at the November term, 1893, and affirmed. 
Opinion filed April 28, 1894.


APPELLANT'S BRIEF, CHARLES A. BARNES AND EDWARD P. KIRBY, ATTORNEYS.

The law is well established that a mortgage must describe the indebtedness 
truly, or it will not prevail against creditors or bona fide purchasers for a 
valuable consideration without notice. Stearn v. Porter, 46 Conn. 313. See 
also Pierce v. Hall, 12 Buch. 209; Brydon v. Campbell, 40 Mich. 331; Gatewood 
v. House, 65 Mo. 663; Frost v. Beckman, 1 John. Chan. 288, 298.

The record of a mortgage should disclose the amount and state of the 
incumbrance. North v. Belden, 13 Conn. 376; Hart v. Chalker, 14 Conn. IL 77; 
White v. Carpenter, 2 Paige 248; Lally v. Holland, 1 Swan (Tenn.) 396; 
Battenhausen v. Bullock, 11 Ill. App. 69; 108 Ill. 28.

The spirit of the registry law requires that the record should disclose, with 
as much certainty as the nature of the case will await of, the real state of 
the incumbrance. Jones on Mortgages, 344.


APPELLEE'S BRIEF, J. A. BELLATI AND J. P. LIPPINCOTT, ATTORNEYS.

The execution of the note, mortgage and contract were simultaneous and formed 
one transaction. Reavis v. Fielden, 18 Ill. 77.

The two instruments, having been made at the same time and relating to the 
same subject-matter, may be regarded as a single instrument, and construed 
together. Canterberry v. Miller, 76 Ill. 355; Baily v. Cromwell et al., 2 
Scam. 72; Duncan et al. v. Charles, 4 Scam. 561.

The note is the principal thing, the mortgage the incident. Coffing v. Taylor, 
16 Ill. 457; Warner v. Helen, 1 Gil. 220.

It is the duty of the court to discover and give effect to the intention of 
the parties, so that performance of the contract may be enforced according to 
the sense in which they mutually understood it at the time it was made; and 
where the intention of the parties to the contract is sufficiently apparent, 
effect must be given to it in that sense, though violence be done thereby to 
its words; for greater regard is to be had to the clear intent of the parties 
than to any particular words which they may have used in the expression of 
their intent. Walker et al. v. Douglass et al., 70 Ill. 445.

No inaccuracy of language, whether from false grammar, from employing a word 
in the wrong meaning, omitting a word or even a clause plainly meant to be 
inserted, inserting a word not meant, using the wrong word, or otherwise, will 
be permitted to defeat the intent, when it can be thus distinctly ascertained. 
For example, to give effect to the evident meaning "or" may be read 
as "and," "quarterly" as "annually," the "party of the first part" as "party 
of the second part." Bishop on Contracts, Section 383.

As printed words are general, intended for any like occasion, and the written 
were specially selected for the particular instance, the latter, in a case of 
conflict, will prevail. Bishop on Contracts, Section 413.

In a case where the argument is partly written and in part printed the 
preference is always given to the written part. Am. Ex. Co. v. Pinckney, 29 
Ill. 392.


MR. JUSTICE WALL DELIVERED THE OPINION OF THE COURT.

The appellee filed his bill in chancery to foreclose a mortgage executed by 
Bettye C. Myers, to secure payment a debt of $5,000 evidenced by three 
promissory notes described in the bill, bearing interest from date, to be paid 
annually.

The mortgage provided that in case of failure to pay the interest when it 
became due, the principal sum should, at the option of the mortgagee, become 
due, and the mortgage might thereupon be foreclosed.

The bill alleged such failure to pay interest and prayed for a foreclosure 
accordingly.

The appellant, who had bought the land of the mortgagor, was made a party 
defendant.

His defense was that by the terms of the mortgage the debt bore interest from 
and after the maturity of the notes and not from their date, and that he had 
no notice when he bought the land that the interest was payable from date. 
Hence he insisted the bill was prematurely fled and that it should be 
dismissed.

The cause was heard and a decree entered according to the prayer of the bill, 
from which an appeal has been perfected to this court.

The mortgage described the notes as bearing interest "from due until paid, 
said principal notes due three years after date, interest payable annually."

It also provided that "in case of default in payment of interest hereinabove 
mentioned for sixty days from and after the same shall become due, then the 
principal sum secured by this mortgage together with accrued interest *

* * shall thereby become due and payab1e and this mortgage may be foreclosed," 
etc., and further that "the mortgagor reserves the privilege of paying said 
notes by installment at any time." The appellant admitted that he examined 
this mortgage as it appeared on the record. There is no pretense that it was 
not properly recorded. Reading all these provisions together it would be 
apparent that there was an inconsistency between the expression "interest from 
due" and the language subsequently employed. This is so striking that it could 
not escape observation.

1st. The interest is to be paid annually.

2d. Failure to pay it annually would mature the principal.

3d. The mortgagor reserved the privilege of paying the notes by installments 
at any time.

Any careful reader would infer that the notes bore interest from date. At 
least he would have reflected that here were three subsequent provisions which 
were wholly without meaning if the interest ran only from maturity. If in 
doubt as to the true meaning of the language thus employed, the law would put 
him upon inquiry and would charge him with knowledge of all that he might have 
learned upon diligent prosecution of such inquiry.

The appellee testified that appellant called on him before buying the land for 
information as to the amount then due on the notes and that he then and there 
gave him the necessary data, that is, the date of the notes, the amount of 
interest paid and what date, but did not then compute the sum then due because 
it was uncertain when the trade would be consummated. The appellant denies the 
material part of this statement, but we can not say that there is any reason 
why the court should not believe the story as told in the appellee.

Still further, it appears from the appellant’s own admission that before he 
made final payment of the balance due to the mortgagor on the purchase of the 
land and while he had in his hands a sum much larger than the interest in 
dispute, he became fully aware of the facts, and that in order to protect 
himself against loss in that respect he took from the mortgagor a special 
indemnity in the shape of a bond secured by a mortgage on other lands.

By that bond the mortgagor agreed to protect and keep harmless the appellant 
against the payment of any interest on said notes accruing between their date 
and maturity.

Having thus received full notice and having thereafter paid the purchase money 
he can not be heard to say that the mortgage did not properly describe the 
notes. Hence, he must look to the mortgagor for indemnity.

It is suggested that the bill should have averred a mistake in the mortgage 
and asked for correction of the same; that there is a variance between the 
allegata and probata and therefore the decree must be reversed.

This objection should have been made in the trial court if deemed important. 
If correction was necessary, an amendment to the bill would have been allowed 
and the decree framed accordingly.

No such objection was interposed and comes too late now. The decree will be 
affirmed.

Additional Comments:
Source: Reports of Cases Decided in the Appellate Court of the State of 
Illinois; Reported by Martin L. Newell of the Springfield Bar; Vol. LV; 
Submitted at the May and November Terms, 1893, and the May Term, 1894, of the 
Third District; and the March and October Terms, 1894, of the First District; 
Chicago: Callaghan & Company, 1895

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