Brief Fact Summary.
Hageman (Plaintiff) sued to foreclose a mortgage. A second mortgage was made on the property to Manly, who assigned the second mortgage to Bybee (Defendant). Defendant contended that the description of the first mortgage of the property was insufficient to put Manly on notice of the first mortgage.
Synopsis of Rule of Law.
The ambiguity was a latent ambiguity because the county in which the land was situated had more than one section five. The Court found that the ambiguity was susceptible to more than one explanation.
Facts.
Plaintiff sued to foreclose a mortgage, which was executed by Ewald and his wife on their property. After the mortgage to Plaintiff, a second mortgage was made on the property to Manly, who assigned the second mortgage to Defendant. Defendant contended that the description of the first mortgage of the property was insufficient to put Manly on notice of the first mortgage. The language of the first mortgage described the property as “one acre and a half in the northwest corner of section five (5), together with the brewery, malthouse, all buildings thereon and fixtures contained therein.” The first mortgage also described the property as being situated in McDonough County, Illinois. The Defendant contended that the first mortgage was void for uncertainty, inasmuch as it specifies neither township nor range. The lower court found in favor of the Plaintiff, and Defendant appealed.
Issue.
Was the description of the property in the first mortgage sufficient to put the Defendant’s predecessor on notice?
Held.
Yes. Affirmed.
The ambiguity was a latent ambiguity because the county in which the land was situated had more than one section five. The court found that the ambiguity was susceptible to more than one explanation.
The court explained that at the time the mortgage was obtained, the mortgagor was living on the northwest quarter of section five in township six north and range one west and that he had thereupon a dwelling house, malthouse and brewery in the northwest corner. Also, the mortgagor had an oral contract for an acre and a half of land in the northwest corner, and subsequently bought two and half acres more and received a deed from the owner for the four acres.
The court found that the calls in the mortgage could be answered by no other property than the mortgagor’s property as described in subsection (b) above.
The court found that the wording of the first mortgage of “one acre and a half in the northwest corner” would be commonly understood to be in a square or rectangular shape as if the tract had been described by metes and bounds.
Discussion.
The Defendant, as holder of the junior mortgage, was subject to Manly, his predecessor’s, examination of title. There was recordation notice in this case, in which the Defendant, using due diligence could have discovered the existence of the first mortgage. The description, as the court found, was of a particular type of property and admitted of no other reasonable explanation.
