The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1872-02-10
q, Of the Supreme Court

For TIE srU Grdnd IPclSi0n ~ Me iStdk ~
W,nu tnt ruse submitted at Term thereof
6eqaa .adL at Ot0Ioa on Tuesday the 12n
day 81 !Septe. er, Il. u. 1871.
No. 23.-JAs l.. CARR VS.. ANsoS RISING ct 81
El7or 10 DO Daciess.
No. 2S.-JAs L. CARR VS.. ANsoN RISING ct al.
Apleal from 10 Dries.
By NVAIKEE, T. These two cases have grown
ont Of the same rlusactlon aud the latter Is bat
a continuation the former, nd we shall con-
slider end III 80 Of them in one opinion: 1t
appears that Rising WAS the owner of the
prererfV in =, -ovcrsv, ma tor the purpose of
borrowiuc mo. - ir- the ne of her husband,
gave note 10 2,OG %, and executed Il trust
deed TO one Meyers to secure the same 2n the
18th day II d. oemher 1877, payable one year
after date. That after the money thus ioaned
had become due, on he l1th d y OF December,
1858, defendants in error executed to Myers p
warantee deed fo' the premises when he extend
ed the time fol payment ore ysa:. lie ~ the
game time executed n boaa for a re-Gonye " .nca
Of the premises whom he money should be pad
On the "a \ OF March, 1852, after the money
had become due, AHsou Rising, Myers and plain
tiff in erTcr cans together, y hen the latte paid
to Myers si2,3sJ 90, anG 10 tAoteupon conve, ed
the premises to plaintif in error, and ho also
paid Rising some money. Ga the 26th day Of
March, 1859, plsntif in error executed to Mrs
Rising bond for reconveyance on her paying
to him or before the gath day March, 1860 the
sum OF twenty four hundred and one dollars,
and strict performance by payment is made of
the essence Of the contract. From this bond WIS
excluded and oAe.hali acres OF the tract.
Defendants in error reinaued il possession until
some time in thu mol.h Of August of the same
year, when plaiy till in error recovered the prem.
Uses III an action Of torcible en'.v and detaiuer.
Appellces soon alter romo'Gd TO and settled in
Nebraska.
In December 1869 deiend4n in error filed
bill in chsncery claiming Il homestead right in
the premises and thatthc conveyancoby Meyers
80 plaintiffs in error, although deed in form,
WAS intended and was but mortgage, but
the bill did not ask an account, pray for leave
10 redeem Plaintiff in error answered the bill
denying their right to homestead, and claiming
that the transaction was intended to be, or WAS
in isot, sn absolute conveyance He also filed =
cross-bili in which he alleged tbst he had made
an absolute purchase Of the promises; that Ris-
Ing 'G improperly possessed himself OF the bond
giscn W Meyers to Mrs. Using, prayed that it
might oe surrenderc6 M aud cancelled, and that
mis- title bs confirmed as IA absolute fee simple.
On hearing the Court heow directed that de-
fendsnts ia error weTs not eh,i'lod to home
stead IT the prsmisos, but bed tlst the deed
from Meyers TO plaintiff Vas mortgage, bu;
rendered no decree fcr en a":JUut, the pay men
OF The money o. leave 10 redeem AMI the suit
went from the docket
No chance occurred IN reference TO the matter,
no1 were aEy steps tsEsn uu.,l the 1Oth nt Oc-
tober, 1857, when defsno.L,- III error filed bill
whcreH they sci forth the facts, and that afLer
planti!f in 0Tror received i,o,u Meyers the con.
yeyapco, they receives lease from plaintiff in
error Tor sixteen nOnthg, but were dispossesssS
o. The %0t Of August, 1850, by proceedings il
iorc.t,e tetAiuGr. Ihos 0lsmed in tha bill thai
tbc conveyance TO I!aiTiiif ~ error was only ,
lG"vIrTEo. They prrl bat t"ey De permitted I,
redeem; thst az account OF the rents and profit
BE- t.i GA, rI.d upon payment Of tho balance plain
81, Ia ,rrV> 2a IeqUlrcG 10 Iecanvey the premise
10 tnrln. he flied Nh aasuor denying that b,
loaned them money, but il, ,.ted that he hsC
Iaro!'aed the property absolutely. On hear
jug the Court below granted the relief sought
6ld .ue:SJ M account 10 be taken and stated
and the report 0; the master haviu. bee,
flied, and exceptions thure'o being oyerrued. Il
jual g'oIca WI. entered r.QH,cing reconvcy auce
tpou 10y usnt lt thc SUM ioGrd dne The re cord
oi 10th cases is b.nr bit 70 dis Court, aud error.
ore asaEueJ thereon.
The rsj question ut VA I'll consider il, whether
tho c"ttee Tca-etc. ~ tho irst care is sustained
by toe lsC,r IN evidence on tao hesring. II tina,
decree woa proper, then IL follows that doisnd.
question could not us iiti4ated Oh the Trial in
Che second case IL Torn, this was purchase
Ivy plSlntit. IN error, and resale; but it j.
niErd that the facts show it 20 have been a loan
OF money hy him, and the CONVEYANCE only re.
oeived as y eecarity. Iisdell, the father OF Mrs
R,inG, testified that rr"aey was borrowed OF
Meyers, ma Hrs. Rising gave . deed of trust on
the preIn!acS to socare it's payment; that subse
qnentiy she and her husband conveyed the
premises to Meyers aud .Ost they borrow Cd eve,
two Thousand dollars OF plaintiff in error and
Meyers conveyed 10 him. That Rising sold one
and bait acres OF the tract to plsntitf ia error
lie says the rate Of iutjAest was Twenty-Five Der
cent. but this witIIess is uNable to state The
amount advanced by plaintiff in error. He say.
be thlnkt it was $4,000 or ~ 200, but is not Ger
tain lie says 1t WAS his understanding p!,intit
%as to give y bond for rUaouveysuce, but doe,
not hnc" that 1t Was givon. He say. 1t was AL
most lmpossble to sell land for cash ia tina,
ntislborsood ut the time the transaction &C
cured
Movers to'tifes Us to bis conveying the land
TO plaintiff in error Oh the written recues. o.
Llrs. Rising, but ,oeius TO nave had 40 Informs
ton M regard 10 the intention of tho parties
6"tne Tour ar I'VE wltue,s3s, fix the value Of the
propsrty AZ the time IRON $500 to $780, bu,
none III Z higher valuation upon it. Platt, WHIT
drew the deed 10 plaintiff in error, seems to hay,
The clearest recollection OF the transaction of an,
% the w!tutsse' ~ far they came to biz
h"o"IeuGe lie say, when the deed was mad,
using reused to take currency unless it WA
m'oe equal 10 specie, and that one per cont b,
eoota Tor that purpose. That he drew a checl
igr Tue amount aud it was received by Movers
1"ut ne pad Tor plMrtiif in error ~ the con sid
,i'uoh 'Cf TIE iaud S2Gi2 II to Movers, and {,
MN another sUm ii $685. and to Rising for hi
NV P'''s" III bhk ~ aggregate of S230500