Bremer v. Calumet & Chicago Canal & Dock Co.

Mr. Justice Scholfield delivered the opinion of the Court: Very much of the argument on behalf of plaintiffs in error will be seen to be inapplicable to the present record, when the effect of the decree below shall he understood. The bill of the Calumet and Chicago Canal and Dock Company seeks a decree setting aside the deed of William H. Colehour conveying to Jacob Bremer lots 1 and 2, in block 47, in Ironworkers’ addition, being a subdivision of the west half of the north-west quarter of section 17, town 37 north, range 15, east of the third principal meridian, in Cook county, and it is neither framed upon the hypothesis that Bremer’s title is that of a mortgagee, nor does it seek the foreclosure of any mortgage. Had no cross-bill been filed, manifestly the decree must have been either that the relief prayed be granted, or that the bill be dismissed. There was no affirmative relief granted in conformity with the prayer of the hill, and while there was no final decree that the bill be dismissed, the practical effect of .the decree was equivalent to that. The cross-bills are, in effect, bills to redeem. They ask that the title under the trustee’s sale be-held to be that of mortgagee, only, and that they be let in to redeem. It is true, the court, in its final decree, did not find the right to redeem precisely as they alleged it to be; but, under the prayer for general relief, it was clearly competent to grant these parties the right to redeem that was granted by the decree. The decree distinctly recites : “And the court further finds, from the evidence, that in consequence of irregularities and defects in the notice and proceedings by the said George W. Smith, trustee as aforesaid, in making the sale under said .deed of trust from the said Charles G. Harris to said Smith, as trustee, by virtue of the power of sale therein contained, that the said Jacob Bremer, Charles W. Colehour, William H. Colehour and Edward Boby, or any or either of them, is entitled to have said sale of said property described in said deed of trust set aside, upon such terms and within such time as may be prescribed by the court, upon paying to the Calumet and Chicago Canal and Dock Company the amount now due upon said promissory notes, including the interest thereon, as specified in said deed of trust, and upon paying to the said Calumet and Chicago Canal and Dock Company the amount paid by the said dock company for taxes upon said land, and interest thereon, as provided in the said deed of trust.” We are not inclined to interfere with the findings of fact in the decree. The court finds, “from the evidence, that the said Jacob Bremer, Charles W. Colehour, William H. Colehour and Edward Boby, and all parties claiming any interest in said premises, or any part thereof, from, through, by or under the said Jacob Bremer, Charles W. Colehour, William H. Colehour and Edward Boby, or either of them, are, by lapse of time, and by their admissions, declarations and conduct, equitably and forever barred and estopped from asserting or claiming that the said promissory notes of the said Charles G. Harris, mentioned in said original bill, are not the notes intended to be described in and secured by said deed of trust by said Charles G. Harris to said George W. Smith, described in said bill, and in evidence as aforesaid, and from asserting or claiming that said deed of trust by said Charles G. Harris to said George W. Smith, was not made, executed and delivered to secure said three promissory notes in said original bill.” It is true, there is upon this point an irreconcilable conflict in the evidence ; but we are unable, after having carefully considered all the evidence bearing upon the point, to say that we are clearly satisfied that the court below erred in its finding. There is also a conflict in the evidence upon the point, whether an officer of the dock company, having authority to conclude it by his declarations and actions, represented and agreed that each lot might be redeemed by the payment of $50, and thereby induced Bremer and others to purchase; but we, in this respect, as in the other, can not say that we are clearly satisfied that the court below erred in its finding. The decree, however, directing Bremer to convey, and on his default the master in chancery to do so, and in assuming to give affirmative relief to the Calumet and Chicago Canal and Dock Company in any other respect, is unauthorized. The decree, after directing the payment of the amount required to be paid to redeem, should then have concluded, that in default of the complainants so doing the cross-bills be dismissed.' 2 Daniell’s Ch. Pr. (Perkins’ ed.) 1016, 17; Seton’s Decrees in Equity, 106, *145; Walker v. Harris, 7 Paige Ch. 167; 2 Barbour’s Ch. Pr. (2d ed.) 200; 2 Jones on Mortgages, (2d ed.) 1106. An objection is urged, that the decree should have provided for the statutory period of redemption. This is not tenable. The time rests in the sound discretion of the court, in view of all the circumstances. In such eases, the complainant should be prepared to pay at once, and his bill, when properly framed, in fact offers to make payment. The usual time allowed is six months, but that is not obligatory in all cases. 2 Jones on Mortgages, (2d ed.) sec. 1107. We can not say that the court here abused its discretion in that respect. The decree is in all respects affirmed, except in so far as it assumes to give affirmative relief, but in that respect it is reversed, and the cause remanded to the court helow, with directions to that court to modify and amend the decree to conform to the views herein expressed. Each party will be taxed with the costs made by that party in this court. Decree reversed in fart and in fart affirmed.