Buehlman v. Koester

Mr. Justice Baker delivered the opinion of the court. The judgment for “damages” was irregular, as the action was debt, but such irregularity is not a ground of reversal. R. R. Co. v. Steele, 69 Ill. 253. The statute under which the action is brought is as follows: “If any mortgagee or trustee in a deed in the nature of a mortgage * * * knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed and request and tender of his reasonable charges, release the same, he shall, for every such offense, forfeit and pay to the party aggrieved the sum,” etc. Illinois Be-vised Statutes, chap. 95, sec. 10. It does not appear that the insurance taken out by Putkamer was taken out before the expiration of the former policy, or that the defendant was notified before he took out the insurance for which he paid $32 that new insurance had been or would be taken out by the mortgagors, and the policy taken out by Putkamer was payable to the holder of the notes secured by the trust deed and not to the grantee therein, as the deed provided. Under the circumstances shown by the evidence the defendant was, at the time he procured the new insurance, authorized to procure such new insurance, and the amount paid by him therefor by the terms of the trust deed became so much additional indebtedness secured by said trust deed. Mrs. Buehlman acquired her interest in the property subject to the trust deed, and her position as the grantee of the mortgagors was the same as that of the mortgagors. Baker v. Aalberg, 183 Ill. 258. The evidence fails to show that all of the indebtedness secured by the trust deed had been paid, and the court therefore erred in rendering judgment for the plaintiff. The judgment is reversed but the cause will not be remanded. Judgment reversed.