Flower v. Elwood

Citations

• 66 Ill. 438

Syllabus

<p>1. Payment—what will amount to. As a general rule, only payment, or something done and accepted as payment or satisfaction, can be held to discharge an obligation. When anything else than payment is accepted as satisfaction, it must appear that such was the intention of the j c</p> <p>3. Same—effect of surrender of note as evidence of Although the surrender of promissory notes by the holder to the maker is prima facie evideuce of their payment, still such presumption may be rebutted by other proof.</p> <p>8. Mortgage—special release construed. Where a mortgagee, in pursuance of a stipulation in the mortgage to that effect, gave a release in favor of the United States to enable the mortgagor to commence the distillery business, which stipulated “that the lien of the United States for taxes and penalties should have priority of said above mentioned mortgage, and in case of the forfeiture of the distillery premises, or any part thereof, the title shall vest in the United States, discharged from said mortgage, and for that purpose the said party of the first part does hereby remise, release,” etc., which release was duly recorded: Held, as against a party claiming title under a junior incumbrance, that the instrument did not operate as a general release of the premises from the prior mortgage, but that its only effect was to give the government a priority of lien.</p> <p>4. Same—whether satisfied by taking new notes with personal security. Where a mortgage, given upon distillery property, provided for the release of the same in favor of the United States in a certain event, upon the mortgagee being indemnified by certain personal security, and before the contingency arose, the latter assigned the first of the notes named in the mortgage to A, and the two next of the series to B, and indorsed a part of the mortgage to B, retaining the fourth and last note, and afterwards, upon the mortgagor giving new notes with personal security, the mortgagee and B surrendered the o