Gillespie v. Hughes

Mr. Presiding Justice Sears delivered the opinion of the court. The questions presented upon this appeal are: First, whether the court erred in admitting parol evidence to establish that the deed absolute in form was intended by the parties as a mortgage "to secure a debt; secondly, whether the conveyance by Gillespie to EJeinecke was a wrong for which an action will lie; and, thirdly, if an action will lie, whether a recovery of substantial damages, or anything more than nominal damages, can be sustained upon the evidence here. Upon the first question it is contended by counsel for appellants that it was error to admit parol evidence to show that this deed absolute in form was intended by the parties to be a mortgage only. It is urged that while parol evidence is admissible in a suit in equity for the purpose of thus showing that a deed absolute in form was in fact intended by the parties to be a mortgage, yet in a court of law the strict rule obtains that the deed can not be thus varied in its terms by parol evidence. The contention is not tenable. The law is well settled in this State to the contrary. The German Ins. Co. v. Gibe, 162 Ill. 251. In this case Mr. Justice Wilkin, speaking for the court, said: “ It has also been held that the fact that it was intended as a security merely, may be proven by parol; nor is this rule confined to causes in equity, as contended by counsel for defendant. ISTo good reason can be offered for holding such testimony competent in equity and not in an action at law like this. The reason such testimony is not competent in an action of ejectment is, that there the title is directly in issue, and the legal title prevails. The statute expressly makes the question whether an absolute deed is a mortgage depend upon the intention of the parties. * * * If, as at common law, a deed absolute in form could'only be held a mortgage upon the ground of accident, fraud or mistake, there would be much reason for holding, as is done by other courts, that the fact could only be proven in a court of equity, where such matters are cognizable; but our statute permits a deed absolute in form to be held a mortgage upon another and different ground from that of fraud, accident or mistake, namely, the intention of the parties that it shall be merely a security. JSTo good reason can be shown for holding that intention may not be proved in an action at law, where the title is not directly in issue.” The second question is as to whether the conveyance by Gillespie to Kleinecke was a wrong "for which an action will lie. If the conveyance was made Avithout authority by the trustee, in whom the absolute title Avas apparently vested, to a third party without notice of the equities of the appellee, and appellee was thereby injured, we are inclined to the opinion that it was a wrongful act for which an action might be maintained by the appellee. The action on the case is based upon very general principles, and is designed to afford relief in all cases where one is injured by the wrongful act of another and where no other remedy is provided. The injury may consist of the doing or omitting of some act contrary to the general obligation of the law, or some violation of a right or duty arising from the relationship of the parties. 1 Chitty Pl. 132; Van Pelt v. McGraw, 4 Comst. 110. In Himes v. Keighblingher, 14 Ill. 469, the declaration counted upon a wrongful recording of a deed which had been delivered by the plaintiff to the defendant to be held in escrow, by means of which wrongful recording the plaintiff was injured. The court held that an action on the case would lie for such wrongful act resulting in an injury, and said: “ He did a wrongful act, which resulted in a damage to the plaintiff, and for that damage he must be held liable.” It is practically conceded in this case that the action is properly brought, for each party requested instructions upon the measure of damages, the appellants asking that the court instruct the jury that only nominal damages could be recovered. The third question presented is upon the question of substantial damages. The damages recoverable, beyond mere nominal damages, can only be such as the appellee has actually sustained. The evidence discloses that A. H. Kleinecke took the title with notice of rights of appellee. The evidence is not clear as to just what notice or knowledge of the facts W. C. Kleinecke had when he took the title. We can not say that there appears from the evidence any sufficient showing that appellee has been damnified to the extent of $2,000, which is the amount of the recovery by him. Without a showing to the effect that his substantial damages amount to the sum recovered, the judgment ought not to be sustained. It might well be, for all that appears in the record, that W. C. Kleinecke took the title with full knowledge of the appellee’s right to redeem, and that, upon a tender by appellee to him of the amount due, to secure which the deed was given, Iileinecke would carry out the trust to which Gillespie was obligated and reconvev the premises to appellee. It is impossible to determine from this record that W. C. Kleinecke would or could claim the land as a hona jicle purchaser, without notice of the trust, and relying upon the record title. See Carpenter v. Davis, 72 Ill. 14. We are of opinion that before appellee can sustain a recovery of substantial damages he must show substantial injury. Other questions raised need not be considered by reason of the conclusion reached. The judgment is reversed and the cause is remanded.