Kemp v. Moir, 45 Ill. App. 490 (1892)

Dec. 12, 1892 · Illinois Appellate Court

45 Ill. App. 490

Martha Kemp and John J. Kemp, who sue, etc., v. Robert Moir.

Mortgage—Bill to Foreclose—Error in Desffription.

Upon á bill to foreclose a mortgage on real estate where a part of the land was described as “ the east side of the southeast quarter,” etc., held, that the east “ side ” meant the east half, i. e., eighty acres, and that the court erred in decreeing the sale of the east one hundred acres, no prayer for reformation having been contained in the bill.

[Opinion filed December 12, 1892.]

In error to the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.

Messrs. Kirkpatrick & Alexander, for plaintiffs in error.

Messrs. Sharp & Berry Bros, and E. H. Overman, for defendant in error.

Mr. Justice Haricer.

This was a bill to foreclose a mortgage on real estate. The description of the land as given in the mortgage is as follows:

“ The east side of the southeast quarter of section thirty-three (33); the east half of the northeast quarter of section thirty-three (33); the northwest quarter of the northeast quarter of section thirty-three (33); the east half of the southwest quarter of the northeast quarter of section thirty-three (33), containing two hundred and forty-acres, more or less, all lying and being in township ten north, five west, in Henderson County, State of Illinois.”

The bill alleges that the tract first described, “ the east side of the southeast quarter,” etc., was, at the time the mortgage was executed by the mortgagors and 'mortgagee, intended to be and include one hundred acres off the east side of the southeast quarter of section thirty-three. The bill does not pray for a reformation of the mortgage; nor was any evidence heard as to any mistake in the description, or as to what was intended by the parties at the time it was executed. ¡Nevertheless, the court decreed a sale of “ one hundred aeres off the east side of the southeast quarter of section thirty-threef with the other tracts described in the mortgage.

The decree was erroneous in that it directed the sale of twenty acres more land than was described in the mortgage. The “ east side of the southeast quarter ” means the a east half of the southeast quarter.” It described eighty acres of land instead of one hundred acres. Chiniquy v. The People, 78 Ill. 570; Winslow v. Cooper, 104 Ill. 235; Hill v Blackwelder, 113 Ill. 294. To entitle the defendant in error to a decree for the sale of one hundred acres off the east side of the southeast quarter of section thirty-three, the bill should have contained in proper form an allegation of mistake and a prayer for a reformation of the mortgage. The decree will be reversed in so far as it directs a sale of one hundred acres off of the east side of the southeast quarter of section thirty-three, and in all other respects affirmed; and the cause will be remanded with directions to correct the decree in accordance with the views herein expressed, i. e.} by directing a sale of the east half of the southeast quarter of section thirty-three.

Affirmed in part, reversed i/n part.