Benneson v. Savage

Citations

• 130 Ill. 352
• 22 N.E. 838

Syllabus

<p>1. Pleading and evidence—in chancery—instrument sued on made a part of the bill—as controlling the pleading. On bill to foreclose a trust deed, a variance between the contract described in the bill and that in the trust deed securing the same is unimportant, when the contract and trust deed are made part of the bill as exhibits. In such case, the court will give the contract and trust deed the legal effect to which they may be entitled, even though that may have been misconceived by the pleader.</p> <p>2. A bill in chancery to foreclose a trust deed recited that the interest on the principal note secured by the trust deed should be paid “according to interest coupons thereto annexed.” The coupons were made a part of the bill as exhibits: Held, that the coupons must be read to ascertain their precise terms, and if it was thereby shown that the coupons described in the bill and those described in the deed of trust were the same, there will be no variance.</p> <p>3. Suretyship—extension of time—release. A mortgage or deed of trust of a third party, given as a security for a note of the principal debtor, recited that it was provided in the note that the holder thereof might extend the time for the payment of the whole or any part thereof, on the maker executing coupons for interest to accrue thereon during such extension: Held, that an extension of the time of payment of the note by the holder upon the maker giving such coupons, did not release the mortgage security.</p> <p>4. Same—faiUire of holder of debt to satisfy the same by a purchase of land from the“principal debtor. The holder of a note secured by the mortgage of a third person, bought lands of the principal debtor, giving a note therefor in a sum greater than that so secured. These lands were attached for the debt of the vendor, and the sale was declared fraudulent and void: Held, on bill to foreclose the mortgage, that the holder of the note so secured could not be charged with the value of these lands, wh