Brown v. Gaffney, 32 Ill. 251 (1863)

April 1863 · Illinois Supreme Court

32 Ill. 251

James P. Brown and Jeremiah L. Brown v. Esther E. Gaffney et al.

Mortgagor — mortgagee — all advances should he allowed, on MU to redeem. Upon bill filed by a mortgagor to redeem from the mortgagee, all advances made by the latter to the former should be allowed, whether embraced in a written contract which existed between the parties, or not.

Appeal from the Superior Court of Chicago.

This cause, upon the original hearing, was decided at the April term, 1862, and will bé found reported in 28 Illinois Reports, 149. The following opinion was pronounced upon a rehearing of the cause at the April term, 1863. All the facts necessary to an understanding of this opinion, will be found in the former report of the case.

Mr. W. T. Burgess, for the appellants.

Mr. U. F. Linder, for the appellees.

Mr. Chief Justice

Catón delivered the opinion of the Court:

In our former opinion in this case our views are expressed and have undergone no change. We now see, however, that in the amount allowed Brown, is not included the moneys which he advanced to Gaffney with which to go to California. This, in equity, we think, should be allowed, as if expressly stated in the written obligation, and such was no doubt the intention of the parties. It is probable that this was inadvertently overlooked in the court below, as it was in this court on the first hearing.

The decree is reversed and the suit remanded, with instructions to make the allowance as above suggested.

Decree reversed.