author: Mr. Justice Mulkey Mr. Justice Craig :

text:
    George B. Donlin et al. v. Lydia Bradley et al.

      Filed at Ottawa January 25, 1887.

    1. Resulting trust—whether it arises—of the nature and extent of interest which passes by a deed. As a general rule of law, it is true that a deed in due form, executed by one sui juris for a tract of land, will pass whatever estate, title or interest the grantor has therein; and in the absence of anything to the contrary, it will be presumed that both the legal and equitable title to such interest or estate passes to the grantee.
    2. But where the consideration paid for property belongs to one other than the grantee in the deed, or when the purchaser causes the conveyance to be made to a stranger, the use or beneficial enjoyment of the estate will, in the first case, result to the person to whom the consideration belonged, and, in the second, to the grantor, when nothing appears to show a contrary intention.
    3. "Where a father, having a life estate in a tract of land, the remainder being in his seven sons and daughters, with a view to borrow money on the same, conveyed his estate to his children, and procured a decree of partition and sale of the premises, and had' the premises struck off" and conveyed to one of his sons, who paid nothing on his purchase, but used the receipts of his brothers and sisters in payment of the price, the father paying the costs, it was held, that while the master’s deed conveyed to such son the legal title, the law would raise, by implication, a resulting trust in favor of the other brothers and sisters whose receipts were used in making the payment, they being used the same as money. Their equitable interest in such case is in proportion to the sums paid by their receipts.
    4. There can be no resulting trust where the use is expressly limited to the grantee in a deed. In such case there can be no trust in favor of the grantor. The ulterior object in making such deed can not be shown to override and counteract the express uses and purposes expressed in the deed.
    5. Same—parol evidence to establish or defeat a claim of resulting trust. A resulting trust being one which arises, by implication of law, out of external facts and circumstances, and not by the agreement of the parties, may be established or defeated by parol evidence, merely.
    6. Trust—Statute oe Frauds—whether an express trust. Where a conveyance is made to one person for the use and benefit of some one else, and the object and purposes of the conveyance are expressly declared by the grantor, this will constitute an express trust, which is void, under the Statute of Frauds, if not manifested or evidenced in writing, as required by the statute. In such case there can be no implied trust.
    7. Release oe trust deed—by deed as to one trust deed—whether as to another. Where a party has executed two deeds of trust to the same trustee, of different dates, to secure separate notes given to the same person, the administratrix of the deceased payee, together with the trustee, made a quitclaim deed of the premises to the debtor, in which it was recited that its object was to release the second deed of trust, it was held, that such deed did not release the first deed of trust, and that the same might nevertheless be foreclosed, in equity. '
    8. Deed—of conditions repugnant to the grant. All conditions, provisions and limitations in a deed for the conveyance of land, which are repugnant to the grant, are treated as inoperative and void.
    Appeal from the Circuit Court of Bureau county; the Hon. Dorrance Dibell, Judge, presiding.
    Messrs. Wilson & Baum, for the appellants:
    In the construction'of a deed of conveyance, the question is not what estate did the grantor intend to convey, but what did he pass by apt and proper words. Adam v. Ross, 1 Vroom, 506; Johnson v. Bantack, 38 Ill. 118; Rickman v. Carstairs, 5 B. & O. 651.

      Videlicets, provisos, habenda, etc., may explain doubtful clauses precedent, and may serve to separate and distribute generals into particulars, yet they can never be suffered to restrain or diminish what is expressly granted. If they can be construed to have no other meaning, they are void for repugnancy. Cutler v. Tufts, 3 Pick. 278; Moore v. Griffin, 22 Maine, 350; During v. Long Wharf, 25 id. 51; Stukely v. Butler, Hobart, 168; Budd v. Brooks, 3 Gill, 198; Peyton v. Ayres, 2 Md. Ch. 64.
    All trusts, except resulting trusts, must be evidenced or created by writing. Hovey v. Holcomb, 11 Ill. 660.
    Besulting trusts arise, first, when the estate is purchased in the name of one person, but the money paid for it is the property of another; second, when a conveyance is made in trust, declared only as to part, and the residue remains undisposed of, nothing being declared respecting it; and third, in eases of fraud. Lloyd v. Spillett, 2 Atk. 148; Browne on Statute of Frauds, sec. 84.
    A resulting trust is never created by agreement, but always, by implication of law, from acts, independent of agreement of the parties. Sheldon v. Hanling, 44 Ill. 68; Williams v. Brown, 14 id. 200; McElderry v. Shipley, 2 Mo. Ch. 25; Jackman v. Ringland, 4 Watts & S. 149.
    A resulting trust is raised only from fraud in obtaining the title, or from paying the purchase money. Barnet v. Dougherty, 32 Pa. St. 371.
    Such trust will not be raised in opposition to the declaration of the person who advances the money, nor in opposition to the agreement of the parties, on which the conveyance is founded, or to the obvious purpose and design of the transaction. Botsford v. Burr, 2 Johns. Ch. 405; Steere v. Steere, 5 id. 18; Squire v. Harder, 1 Paige, 494; White v. Carpenter, 2 id. 218; Page v. Page, 8 N. H. 187; McGuire v. McGowen, 4 Dessaus. 487; Elliott v. Armstrong, 2 Blackf. 199.
    A resulting trust may, in all cases, be rebutted; and it is well settled, that it may be rebutted by parol evidence or circumstances. The rule is general, that an equity founded on parol may be rebutted, put down or discharged by parol proof. Myers v. Myers, 1 Casey, 100; Livermore v. Aldrich, 5 Cush. 431; Perry on Trusts, sec. 139.
    The resulting trust must arise, if at all, at the time of the execution of the conveyance. Rogers v. Murray, 3 Paige, 390; Perry on Trusts, sec. 133.
    Messrs. Hopkins & Hammond, for the appellees:
    In all cases, by implication, and operation of law, a resulting trust arises in favor of the party whose money went into the purchase. Enos v. Hunter, 4 Gilm. 211; Stevinson v. Thompson, 13 Ill. 186; Perry v. McHenry, id. 227; Reeve v. Strawn, 14 id. 94; Williams v. Brown, id. 200; Seaman v.
      Cook, id. 501; Nichols v. Thornton, 16 id. 113; Franklin v. McEntire, 23 id. 91; Bruce v. Roney, 18 id. 67; Loomis v. Loomis, 28 id. 454; Sheldon v. Harding, 44 id. 68; Robert v. Opp, 56 id. 34; Holmes v. Holmes, 44 id. 168; Cramer v. Hoose, 93 id. 503.
    Any property interest vesting in the land will create a resulting trust. Dwinel v. Veagie, 36 Maine, 509; Buck v. Swarzig, 35 id. 41; Buck v. Pike, 11 id. 9; Brothers v. Porter, 6 B. Mon. 106; Peyster v. Gould, 2 Green’s Ch. 474; Kisler v. Kisler, 2 Watts, 323; Taliaferro v. Taliaferro, 6 Ala. 404; Lathrop v. Hoyt, 7 Barb. 59; Strimpfler v. Robert, 18 Pa. 283; Reeve v. Strawn, 14 Ill. 94; Sugden on Vendors, (Am. notes,) 909-919; Browne on Frauds, secs. 87-90.
    If the receipts of the heirs passed for and were accepted by the master as money, they represented the interest of the heirs in the jrroceeds of the sale, and in the lands before the sale, and it was their property, and a release of their rights, which paid for the land, the legal title of which was placed in James C. Donlin; and the law creates a resulting trust in favor of those who furnised the means to make the purchase. Jenkins v. Eldridge, 3 Story, 181; Boyd v. McLane, 1 Johns. Ch. 582; Botsford v. Burr, 2 id. 405; Livingston v. Livingston, id. 538; Reeve v. Strawn, 14 Ill. 94; Enos v. Hunter, 4 Gilm. 211; Strimpfler v. Robert, 18 Pa. 283; Sugden on Vendors, (Am. notes,) 909; Browne on Frauds, secs. 82-85, 90-93; Story’s Eq. Jur. secs. 1201, 1206, 1210.
    The intention of the parties to a deed must control. From the recital =im the release deed, it is evident that only one of the trust deeds was released. There is no pretence that the debt secured by the first trust deed was ever paid, but, on the contrary, Bernard Donlin continued to pay the interest on it until his death. Railroad Co. v. Koelle, 104 Ill. 455; Mortgage Co. v. Gross, 93 id. 483; Smiley v. Fries, 104 id. 416; Manufacturing Co. v. Wagon Co. 91 id. 230; Peckham v. Haddock, 36 id. 38; Board of Education v. Baptist Church,
      63 id. 204; Hadden v. Shoutz, 15 id. 581; City of Alton v. Transportation Co. 12 id. 38; Swift v. Lee, 65 id. 336.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 24th of March, 1866, James C. Donlin, since deceased, made his note to Tobias S. Bradley, for $2500, payable five years after date, with interest at the rate of ten per cent per annum, to secure which, he, at the same time, executed a trust deed to H. B. Hopkins, conveying the premises now in controversy. On the 17th of July, of the same year, Donlin made another trust deed upon the same premises, to Hopkins, to secure two other notes given by him to Bradley, amounting, in the aggregate, to $1500. Some time in June, 1867, Tobias S. Bradley died intestate, and his widow, Lydia Bradley, was appointed administratrix of his estate. On the 21st day of May, 1868, H. B. Hopkins and Lydia Bradley, for the expressed consideration of $1500, “remised, released, sold, conveyed and quitclaimed * * * all right, title, interest, claim and demand” which they had to the premises in question, to the said James C. Donlin. Immediately after the description of the land in said deed, is inserted the following provision: “This deed is made for no other purpose except to release a certain trust deed made by James C. Donlin to H. B. Hopkins, dated the 17th day of July, A. D. 1866, recorded the 12th day of February, 1867, book 47, page 321.” Then follows the habendum clause and conclusion in the usual form. The deed, with the exception of the clause just cited, relating to the object for which it was made, is in the ordinary form of a quitclaim deed, in every particular. J ames C. Donlin died intestate on the 15th day of May, 1880, leaving, as his only heirs, two minor children,—George B. and Charles E. Donlin.

' On the 10th of August, 1883, the original bill in this case was filed by Lydia Bradley, as administratrix, and H. B. Hopkins, as trustee, to foreclose the trust deed of the 24th of March, 1866, given to secure the Bradley note for $2500. To this bill, Edward Donlin, administrator of James C. Donlin, and the two infant sons of the latter, George B. and Charles E., were made defendants. Pending this bill, to-wit, on the 2d day of July, 1884, Tillie Donlin, the widow, and George B., a minor son of James C. Donlin, filed an original bill in the same court, against Charles E. Donlin, a son of James C. Donlin by a former wife, praying for the partition of the premises in question between the two children, and the assignment of the widow’s dower therein. Mrs. Bradley, and Hopkins, together with one Baughton, a terre tenant, were also made parties to the bill. By subsequent amendments, John, Edward P., Ellen M. and Julia Donlin, Catherine Rocliford and Josephine T. Moran, the surviving brothers and sisters of the said James C. Donlin, were made parties defendant to each of the above mentioned suits. They filed both an answer and cross-bill in the partition case, but made no defence to the foreclosure suit. By their cross-bill, they seek a partition of the premises between themselves and the two children of James C. Donlin, subject to the claim of Mrs. Bradley. The facts, as set forth in the answer and cross-bill, are, in substance, that their mother, Catherine Donlin, died seized in fee of the premises, in August, 1861, leaving her surviving, Bernard Donlin, her husband, themselves and the said James C., as her only heirs-at-law; that their father, in 1865, having a life estate in the land, as tenant by the curtesy, was desirous of obtaining a loan of $2500 on the property from Tobias S. Bradley; that to accomplish this object, it was thought best to get the fee simple title in one person, and for this purpose, their father, and their brother John, without consideration, quitclaimed and released their respective interests in the premises to the other children; that thereupon, a petition for partition of the premises was filed in the name of Ellen M. and Edward P. Donlin, as complainants, against the remaining children having an interest in the property ; that the cause was prosecuted to a decree finding the premises not susceptible of division, and ordering-a sale of the same; that in pursuance of the common understanding between the parties, the premises were struck off to James C. Donlin, who subsequently received a master’s deed therefor;, that nothing was paid by him on his purchase, and that- he, afterwards, in consummation of his father’s scheme,.to effect the loan, executed the Tobias note and trust deed for $2500. The answer admits that the two children of James C. Donlin are, as heirs of their father, owners, in fee, of one-seventh of the premises, in their own right, .and that their mother, Tillie Donlin, is entitled to dower in that seventh interest. But it is insisted, the remaining six-sevenths of the land belongs, in equity, to the respondents, and that the children of James C. Donlin hold the legal title of the same interest for them. To the cross-bill, Tillie Donlin filed an answer, denying the equities thereof, and also setting up the Statute of" Frauds as to the alleged .trust in the purchase of the property by James C. Donlin at the partition sale, and also laches in the assertion of their, alleged rights. George B. and Charles E. Donlin answered, by their guardian acl litem. On the ,27th day of March, 1885, the foreclosure and partition suits were, by consent of the parties, consolidated.

The court, on the hearing, found the facts substantially as alleged in the answer and cross-bill in the partition suit, and ordered that the original bill in that'suit be dismissed for want of equity; found there was due complainant in the foreclosure suit, on the note and deed of trust, $3575.92; directed that the same be paid by the heirs of Catherine and Jame's C. Donlin within sixty days, and in default thereof, that the master sell the premises in question, and apply the proceeds of sale to the payment, first, of costs; second, costs taxable against Lydia Bradley and H. B. Hopkins; third, amount due Lydia Bradley; fourth, .that the remainder of proceeds be divided per stirpes between the heirs-at-law of Catherine Donlin; that out of the one-seventh to be allotted to the two children of James C. Donlin,, the master is directed to pay one-half of the remaining costs, and report to the court the residue, as the basis of Tillie Donlin’s dower, and to pay the balance of the costs out of the remaining six-sevenths of proceeds in his hands belonging to the children of Catherine Donlin, and to divide the residue equally between them. From this decree, Tillie Donlin, and the two children of James G. Donlin, have appealed to this court.

The position of appellants, shortly expressed, is, that by virtue of the master’s deed to James C. Donlin, the latter became the owner of the property, subject, merely, to the trust of pledging it, by way of mortgage, to secure the contemplated loan from Bradley, and that this trust, being an express one, and the Statute of Frauds having been interposed as a defence, can not be established otherwise than by a writing of some kind, signed by Donlin,—that being an express trust, it also follows, as a necessary legal sequence, there can be no implied or resulting trust. Following up the deductions thus made, it is further urged that the legal effect of the quitclaim deed from Lydia Bradley and H. B. Hopkins, to James C. Donlin, for the premises in controversy, notwithstanding the positive declaration therein of a contrary purpose and intention, operated as an effectual release of the indebtedness secured by the first as well as the second deed of trust, thus leaving in James C. Donlin the title to the property, wholly unincumbered, and free from the claims of all persons whomsoever.

Without going into an examination of the numerous cases referred to by counsel, it may be admitted they, in the main, sustain the several propositions of law in support of which they were cited. But it does not therefore follow that the application which counsel makes of the propositions in question, or the authorities by which they are sustained, is a proper one, or that they justify the conclusion drawn from them, in their application to this case. It is undoubtedly true, as a general rule of law, that a deed in due form, executed by one, sui juris, for a specifically described tract of land, will pass the title to whatever interest or estate the grantor has in the property, and in such case, in the absence of anything to the contrary, it will be presumed that both the legal and equitable title to such interest or estate passed to the grantee. But where, in such case, if the consideration paid for the property belonged to one other than the purchaser, or if the purchaser causes the conveyance to be made to a stranger, the use or beneficial enjoyment of the estate will, in the first case, result to the person to whom the consideration belonged, and in the second, to the grantor, where nothing appears to show a contrary intention. In these cases, the trust arises ex lege, and is founded upon the natural equity that he who pays for the property should enjoy it. (1 Perry on Trusts, sec. 124.) Trusts of this kind are a species of a larger class known as implied trusts, all of which arise out of extrinsic circumstances, and not from the agreement of the parties, and consequently may be established or defeated by verbal testimony, merely. On the other hand, where real estate is conveyed to a party for the benefit of some one other than the grantee, and the purposes and objects of the conveyance, and the uses to which the property is to be applied, are expressly declared by the grantor, such a transaction will constitute an express, as contradistinguished from an implied, trust, and if not manifested or evidenced by writing, it will be obnoxious to the Statute of Frauds. In these cases, there can be no implied trust", for the grantor, by expressly declaring the trusts upon which the conveyance is made, leaves nothing for implication.

It may also be admitted, as claimed by appellants, to be a well settled principle in the construction of conveyances, that all conditions, provisos and limitations which are repugnant to the grant are to be regarded as inoperative and void. These general propositions are so elementary in their character that it is to be presumed they are understood alike by all who can justly lay any claim to a general knowledge of the rudiments of the law. But the question here is, whether the application which appellant seeks to make of them, in this case, is warranted by the facts before us.

Appellants’ counsel, in his argument, assumes throughout that appellees are seeking to establish certain facts, the proof of which, other than by a writing of some kind, is proliibted by the Statute of Frauds. This assumption, which forms the basis of the entire argument, we think is not well founded. What are the facts ? The supposed superior equity of appellants’ claim is founded exclusively upon the master’s deed to James C. Donlin, for it is not pretended that before that time his claim to the property was any better or more extensive than that of either of the other children of Catherine Donlin, from whom the land was inherited. Looking, then, at the master’s sale and subsequent deed as the source of appellants’ alleged superior equities, what do we find? The partition proceeding was commenced and conducted under the exclusive direction and control of Bernard Donlin, the father of all the parties to that suit, and the entire costs and expenses were paid by him. The property was struck off to James C. Donlin at the sale, though he was not present, and without his authority, and probably without his knowledge. No actual payment of anything was ever made by him to the master, on account of his- purchase. The property was struck off to him at $3662.50. Assuming this to have been its true value, his one-seventh interest in it was $523.21|-. The only consideration, therefore, moving from him personally, was his interest in the land, amounting to the sum stated. Receipts, however, were obtained from the other children for the amount of their respective interests in the proceeds of the sale, for which it is not pretended anything was paid, and were used as so much cash in settling with the master. These receipts, representing appellees’ interests in the land, pr its proceeds, having been treated and used, in paying for the land, as so much cash, must, for the purposes of this suit, be now treated the same way. Viewing the transaction in this, its true, light, there could not be a better illustration of a resulting trust.

As opposing this view, it is urged, an express trust was declared, and, consequently, there could be no resulting trust. Conceding the premises to be true, this conclusion W'ould certainly follow. But where is the evidence of such express trust ? Where and by whom was it declared ? Certainly not by the master who made the sale and deed for the premises. As to the appellees, they do not- seem to have been so much as present at the sale, or at the making of the deed by the master. It is quite clear, from the evidence, no express trust, verbal or otherwise, was ever declared upon the master’s conveyance to James C. Donlin, and hence there was nothing to prevent a trust resulting, as is claimed by appellees. The only difficulty we have encountered in the case relates to the claim or interest of John Donlin, who, it will be remembered, prior to the execution of the master’s deed to James C. Donlin, conveyed, for a nominal consideration, all his title and interest in the premises to appellees and the said James C. Donlin. We think it clear, upon authority, no trust or beneficial interest could have resulted to him upon the making of that deed. On looking at it, we find the habendum clause to be as follows: “To have and to hold the same, (the premises,) together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title and claim whatever of the said party of the first part, either in law or equity, to the only proper use, benefit and behoof of the said party of the second part, their heirs and assigns forever. ” It will be perceived, from this clause in the deed, the use or beneficial interest is expressly limited to the grantees therein mentioned, and to their heirs, and assigns, and it is a familiar doctrine of the law of trusts, that there can be no resulting trust where the use is expressly limited, as it is here, to the grantee. 1 Perry on Trusts, 162; 1 Lomax’s Digest, 246; 2 Washburn on Beal Prop. 476.

It is clear, upon these authorities, the claim of John Donlin cannot be sustained, unless the ulterior object in making his deed is permitted to override and counteract the express provisions contained in it, which would hardly find support either in reason or authority. We think it quite clear, as claimed by appellants’ counsel; that the deeds of John and his father to the other children, before the bringing of the partition proceeding, and its final culmination in a conveyance by the master to James C. Donlin,' were but parts of the scheme devised by the father of the children to obtain the proposed loan of §52500 on the property. Concede all this to be so, still, when these deeds, and the record of the proceedings made and had for such ultimate purpose, are brought before a court as instruments of evidence, they must be construed and given effect according to their terms, if any effect is to be given to them at all. Where they are not assailed on the ground of fraud, accident or mistake, and, they are properly before a court as a part of the proofs in a cause, and their meaning and import are plain and obvious, as was the case here, it is the duty of the court to give them effect accordingly.

It follows, from what we have said, the court below erred in finding that John Donlin had any interest in the premises. In all other respects we think the decree was.right.

WTith respect to the quitclaim deed executed by Lydia Bradley and H. B. Hopkins to James G. Donlin, it is hardly necessary to observe that the rights of the children of Catherine Donlin could not have been, in any view, prejudiced by it, as neither of them, except James C., was a party to it. Nor do we think it stands in the way of a foreclosure of the trust deed. There is no pretence that the §52500 note was ever paid, and the clause in the deed showing the object for which it was made, clearly negatives any intention of releasing that debt. Under these circumstances, equity will, notwithstanding the legal title to the property may have devolved upon James 0. Donlin by virtue of the deed, keep the debt or claim alive, as a charge upon the land.

It is also urged that the trust set up in the cross-bill of appellees is an express trust, and not a resulting trust. Without stopping to inquire whether this is so or not, it is sufficient to say that the facts from which the law raises the resulting trust are fully and clearly stated in the cross-bill, and under the prayer contained in it, the relief awarded was fully warranted.

The decree of the -court below is reversed, and the cause remanded, with directions to enter a decree in conformity with the views here expressed.

Decree reversed.

Mr. Justice Craig :

_ I do not concur in that part of this opinion which disposes of the rights of John Donlin. The deed made by him to the other heirs, by which he is held to be concluded and deprived of all interest in the property, was executed as a part of the arangement under which the title to the property passed, by the master’s deed, to James Donlin, in trust for all the heirs; and as the execution of that deed, and the deed of the.master in chancery, are but parts of one transaction, the two instruments should, in my judgment, be construed together as one act or deed, and if this is done, the interest of John Donlin in the property will not be cut off, but it will stand on an equality with the other heirs, as equity requires that it should. In other respects I concur in the opinion.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Charles T. Gorham v. John Farson et al.

      Filed at Ottawa January 25, 1887.

    1. Contract or sale—of a contract of sale embraced in a tease of the same premises—rights of the parties arising thereunder. A written agreement for the lease of certain premises, for the term of three years, at a monthly rental of $100, payable at the end of each month, contained also a contract for the purchase and sale of the premises within three years from the date thereof, for the sum of $15,000, of which one-third was to be paid in cash, and the balance in one and two years, with six per cent interest on the deferred payments, the contract providing that the payment of rent should cease upon the first payment of the purchase money being made: Held, that ,there was po connection between the leasing and the sale of the property, further than that when the terms of the sale were complied with, the rent should cease, and that no failure to pay rent could affect the right to purchase or create a charge upon the premises, and that the right to purchase was not postponed to the end of the term.
    2. Judgment lien—judicial sale—in respect to debtor’s interest in land, held under a contract of purchase. Where a lease to a party contains an absolute contract for the sale of the demised premises by the lessor to the lessee, upon certain stated terms, and also certain other real estate, a judgment against the lessee will become a lien on the lessee’s interest in the property; and any subsequent change in the terms of the sale, adding further burdens on the purchaser, will not affect the rights of the judgment creditor.
    3. A sheriff’s deed for land sold under execution will relate back to the-commencement of the lien of the judgment, and will pass whatever interest the debtor then had in the property sold; and if that interest arose under a contract of purchase, the vendor and vendee can not afterward make any material change in its terms, to the prejudice of the grantee in the sheriff’s deed.
    4. While a vendor may consummate a contract for the sale of land by conveying to his vendee and taking back notes for the price, secured by mortgage on the property, as provided in the contract, yet, after the lien of a judgment against the vendee has once attached on his interest under the contract, it is not allowable for such vendor thereby to destroy or sensibly impair the vendee’s interest in the property, as fixed by the contract -when the lien attached, hence they can not incumber that interest with other debts, nor for a greater rate of interest than that originally provided.
    5. A leased to B eight lots, for the term of three years, at a rental of $100 a month, the lease containing a contract for the sale of the premises to the lessee within the three years, for $15,000, one-third to be paid in cash, and the balance in one and two years thereafter, for which notes were to be given, bearing six per cent interest, secured by deed of trust on the property, and also containing a contract for the sale to the lessee of three other lots, at $1300, payable in one year, with like interest. At the date of such lease and contract there was a judgment in favor of 0, against B, which became a lien on his interest. B formed a partnership, which borrowed of A $3000. The firm failed, owing this sum, and $200 for rent. A conveyed the property to B, who thereupon gave his four promissory notes, each for $4500, the first payable in six months, and the others on May 1, in the years 1884, 1885 and 1886, bearing seven per cent interest, secured by deed of trust on all the lots. O purchased-the lots under his" judgment, and obtained a sheriff’s deed: Held, that, as against O, the lots could not be charged with the $3000 for money loaned, and $200 rent, nor .with more than six.-per cent interest, nor could the eight lots be charged with the price of the other lots, nor the latter with the price of the former. '
    6. Allegations and proofs—what constitutes a variance, as to the ownership of the debt, on foreclosure. A bill to foreclose a trust deed securing the payment of notes, alleged that one H. was the holder and owner of the notes, while the decree, without any amendment to the bill, or cross-bill being filed, found that P., K. & Co. were the owners of the notes, and ordered payment to them: Held, that there was clearly such a variance between ■ the allegations and proofs, and the allegations and the decree, as to the ownership of the notes, as to render the decree erroneous.
    7. Tender—whether necessary, when the creditor declares he will not accept. Where a creditor, in advance of an offer to pay, or in response to an offer to pay, informs the party under obligation to pay that he will not accept the.amount actually, due, in discharge of the indebtedness, the latter will be released from the duty of making such tender.
    8. Acceleration of maturity of debt—for non-payment of installment due—as against a judgment creditor of the same debtor. A vendor of real estate, after the lien of a judgment had attached to the interest of the vendee, conveyed the land to the vendee, in accordance with the contract of sale, taking from the latter his notes for the purchase money and another and distinct indebtedness of $3200, bearing seven per cent interest, instead of six, as provided in the contract, secured by a trust deed, containing a provision authorizing the holder of the notes to declare them all due for a failure to meet any payment when due^ The judgment creditor having obtained a sheriff’s deed under his judgment, called upon the vendor, the holder of the notes, to ascertain the sum due him under his contract of s,ale for the purchase money, who refused to state such amount, and demanded the full amount due on the notes, with seven per cent interest, declining to accept any less sum. The vendor thereupon declared all the notes due, and caused a bill to be.filed to foreclose.the trust deed for all the notes: Held, that, under the circumstances, the vendor was. not entitled to declare the unmatured notes due, and foreclose for the same, as against the grantee in the sheriff’s deed.
    9. Mortgages—mortgagee in possession—of his rights and duties— as to the payment of taxes. Where a mortgagor turns over the mortgaged premises to the mortgagee, the latter will thereafter occupy the position of mortgagee in possession, and, as such, it will be his first duty to pay, from the rents and profits arising therefrom, all claims for taxes, and the members of the firm of which the mortgagor was a member will have no right to disturb such possession; and if the mortgagee suffers the possession to be taken from him, without resistance, he will not thereby be discharged from his duty of relieving the property of taxes.
    10. Same—foreclosure—as against judgment creditor, or a purchaser of equity of redemption. Where the purchaser of two distinct parcels of land, at distinct prices, after a judgment lien has attached to his interest in both purchases, gives his notes for the entire purchase money, secured by a deed of trust upon all the property, on bill to foreclose the trust deed it is error to charge the entire purchase money against each of the tracts, as against the judgment creditor having the right to redeem.
    11. Where the mortgagor’s equity of redemption has passed from him by sale under execution, so that he has no interest in the mortgaged premises, the mortgagee’s right of foreclosure will be limited to the amount that may equitably be enforced, as against the holder of the equity of redemption, notwithstanding the mortgagor may be liable for a greater sum.
    12. Same—when strict foreclosure not proper. Where the amount the owner of the equity of redemption is required to pay to redeem from a foreclosure sale is less than the value of the property, there can be no strict foreclosure, under our practice.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    On the 1st day of May, A. D. 1881, Preston, Kean & Co., by their agent, James Payne, entered into an agreement in writing, under seal, with Gilbert A. Colby, whereby they demised to him the smelting works located on block numbered 4, (except streets and alleys,) of Crocker & Stone’s subdivision of ten acres north of and adjoining the west twenty-two and one-half acres of the north five-eighths of the north-east quarter of section 4, township 38 north,- of range 14 east, of the third principal meridian, Cook county, Illinois, for the term of three years, ending on the 30th day of April, A. D. 1884, for the monthly rental of $100, payable at the end of each month. They were to.pay all taxes on the premises as they then were, during the term, and Colby was to pay taxes on improvements added by him; and Colby agreed to purchase, and they agreed to convey to him, the premises, within three years from the date of the agreement, for the sum of $15,000, of which $5000 was to be paid in cash, and the remainder was to be paid, $5000 in one .year and $5000 in two years from the date of the cash payment, with interest at the rate of six per cent per annum on the deferred .payments. Upon making the cash payment, Colby was to cease to pay rent, and he was to secure the deferred payments by mortgage or deed of trust on the property. In case Colby failed to purchase, Preston, Kean & Co. might enforce the agreement, and retain all the machinery and improvements put upon the premises by him, as agreed damages for breach of the contract. Colby also agreed to buy, and Preston, Kean & Co. to convey to him, lots 6, 7 and 8, of block 4, of Day’s subdivision of part of the said north-east quarter of section 4, aforesaid, for the sum of $1300, payable in one year from date, with interest thereon at the rate of six per cent per annum;
    Colby formed a co-partnership with his son and one Gardner, under the firm name of Colby, Gardner & Co., for the purpose of manufacturing plows, and that firm took possession of the property thus demised, and placed upon it improvements and machinery of value, and on the 31st of May, A. D. 1881, the firm of Colby, Gardner & Co. borrowed $3000 of Preston, Kean & Co., and gave their promissory note therefor, payable within ninety days from that date. The firm failed on the 1st day of October, A. D. 1881, being then still indebted to Preston, Kean & Co. for the full amount of the loan, and the further sum of $200 for rent of said premises. It was then agreed between Colby, and Preston, Kean & Co., that they should at once convey the premises to him, and that he should then convey them in trust, to secure the sum before agreed upon as their price, and also the indebtedness of the firm of Colby, Gardner & Co. for borrowed money and rent. This agreement was, on the same day, accordingly carried out. Preston, Kean & Co. conveyed, absolutely, to Colby, and he conveyed the premises, in trust, to John Farson, as trustee, to secure the before named indebtedness, evidenced by four promissory notes of that date, executed by Colby to bis own order, and by him duly indorsed, all bearing interest at the rate of seven per cent per annum,—one for $4500, due six months after date, and the other three for $4500, due, respectively, on the 1st dajr of May, in the years A. D. 1884, 1885 and 1856. A provision in the deed of trust authorized the holder, in case of default in the payment of the principal or interest, or any part thereof, to declare the whole of the notes due and payable. At the same time that these instruments were executed, Colby, Gardner & Co. sold and transferred all their stock, materials, machinery and personal property then on said premises, to Preston, Kean & Co., upon an agreement between the parties that the same should be sold, and the proceeds applied to the payment of the note for $4500, in which was embraced the indebtedness for borrowed money, and for rent. Preston, Kean & Co. afterwards took possession of said personal property, and sold a portion of it, realizing therefrom $436.15. Gardner then filed his bill for a dissolution and settlement of the partnership, making Preston, Kean & Co. parties. A receiver was appointed, and Preston, Kean & Co. turned over to him the residue of the personal property in their hands, and he afterwards sold it, under an order of the court, for $311.45. The receiver also sold the interest of the firm in the real estate to Allen Breed, on the 11th of April, A. D. 1882, for the sum of $345, which sale was subsequently confirmed by the court.

      Charles T. Gorham recovered a judgment in the Superior Court of Cook county, at its October term, (being the' 10th day of October, A. D. 1880,) against Gilbert A. Colby, for the sum of $5500, and costs of suit, and immediately thereafter he caused an execution to be issued upon this judgment, and placed in the hands of the sheriff of Cook county. Oil the 8th day of September, A. D. 1882, Gorham sued out an alias execution on his judgment, (nothing having been realized on the first execution,) which was then delivered to the sheriff, and by him levied on the lots described in the agreement between Colby and Preston, Kean & Go., of the 1st day of May, A. D. 1881. Breed thereupon filed his bill in chancery, in the Superior Court of Cook county, against Gorham and the sheriff, to enjoin a sale of the property under this levy, upon the ground that the judgment had not become a lien upon it before he received a conveyance of it; but the trial court, on hearing, dismissed the bill, and that ruling was affirmed, on appeal, first, in the Appellate Court, and afterwards in this court. (Breed v. Gorham et al. 108 111. 81.) On the 13th of February, A. D. 1883, the sheriff sold the property at public sale, under this levy, Gorham becoming the purchaser, and receiving a certificate of sale. In February, A. D. 1884, E. A. Crane, the agent of Gorham, on behalf of Gorham, made application to Preston, Kean & Co. to ascertain how much was due on the contract with Colby, of May 1, A. D. 1881, but they refused to state the amount that was due, and demanded of him payment of $19,500, and interest thereon, at the rate'of seven per cent per annum, from the 1st day of October, A. D. 1881. On the 20th day of May, A. D. 1884, Gorham received a sheriff’s deed of the property.
    The present bill was filed by John Farson, against Gilbert A. Colby, Charles T. Gorham and Frederick W. Hayes, on the 3d day of May, A. D. 1884, in the Superior Court of Cook county. It alleges, that on or about October 1, A. D. 1881, Gilbert A. Colby was indebted to Preston, Kean & Co. for the entire purchase money of the real estate therein described, in the sum of $19,500, and executed his four promissory notes therefor, and then proceeds to describe the promissory notes and deed of trust securing them, of October 1, A. D. 1881. It then alleges that Preston, Kean & Co. indorsed over the said notes, and delivered them to Frederick W. Hayes, who was then the owner and holder thereof; that no part of said notes has been paid; that Hayes has, by virtue of the terms of the trust deed, declared all of the notes, and the interest thereon, due, and requested complainant to foreclose, etc.; that said notes were, in fact, given to secure the entire amount of purchase money for the real estate described in the trust deed; that Colby is insolvent, and a non-resident; that there are due and unpaid $400, in taxes and assessments; that $19,500, with interest thereon, at the rate of seven per cent, from the 1st day of October, A. D. 1881, remains due and unpaid to Hayes; that the premises are a meagre and scant security, and that Colby is insolvent: It is further stated, Allen Breed, Charles T. Gorham, Augustus D. Lamb, and others, have some interest in the premises junior to the mortgage ; asks that they be made parties; prayer that the usual decree be made for the sale of the premises; that complainant be appointed special commissioner to make the sale, and be allowed his fees, and solicitor’s fees, etc. Frederick W. Hayes filed his answer to the bill on the 3d of May, A. D. 1884, admitting the allegations of the bill to be true, and particularly alleging that he is the owner and holder of said notes and trust deed; that he has declared all of said notes and interest due, and that he has requested the complainant to enter into the possession of the premises in the hill described, to collect and receive the rents thereof, and to foreclose the mortgage. Colby answered on the 13th of May, A. D. 1884, confessing the allegations in the bill, and admitting there to be due on the notes, etc., $19,500, with interest thereon, at the rate of seven per cent, from October 1, A. D. 1881.

      On the 14th of May, A. D. 1884, William D. Preston was appointed receiver, and on the 17th of May, A. D. 1884, the court authorized the receiver to lease the east half of the property to Augustus D. Lamb, at $110 per month, from May 1, A. D. 1884, to April 30, A. D. 1885. On the 3d of June, A. D. 1884, Charles T. Gorham entered his appearance in the cause, and on the 14th of the same month he filed his answer, in which he denies that Colby was ever indebted to Preston, Kean & Co. in the sum of $19,500, for the purchase price of the premises; that he has no knowledge of the trust deed except hearsay; denies'that the trust deed ever was, or now is, a lien upon the premises, except subject to the lien of defendant; avers that the trust deed has been paid; denies that Frederick W- Hayes ever was or is the owner of the notes; denies that he could declare them due, to the prejudice of defendant; denies that Hayes authorized complainant to foreclose the mortgage; denies that Colby is insolvent, and that the premises are a scant security; avers that the property is worth $30,000, and is increasing in value; sets up that he recovered judgment against Colby in that court, in 1879, for $5500, and immediately issued execution thereon; that the next" year Colby purchased the premises for $16,200, and defendant’s judgment immediately became a lien thereon; that after his lien had attached, Colby and Preston, Kean & Co. conspired together to defraud him out of his lien, and for that purpose they executed the trust deed and notes in question, and they now seek to obtain a vendor’s lien for $19,500, or $3000 more than Colby paid for the same; that on April 15, 1882, a sale of Colby’s interest in the premises, but subject to the defendant’s lien, was made by order of the court, and that Preston, Kean & Co. bought it, and paid for it, but caused it to be deeded to Allen Breed, without his knowledge or consent, and that Preston, Kean & Co.’s mortgage title then passed with the title so purchased; that defendant was not a party ■to that suit; that by virtue of the defendant’s prior judgment lien the premises were sold February 14, 1883, and he became the purchaser; that there was no redemption from that sale, and on May 20, A. D. 1884, he received a sheriff’s deed, and his title became absolute. The litigation with Breed is then set out, alleging that Breed, in fact, had no interest in it, hut that his name was used by Preston, Kean & Co. to sub-serve their own ends. It is then further alleged, after repeating that the purchase price agreed to be paid by Colby for the property was $16,200, that Preston, Kean & Co. have received $3500 from Colby, and $4000 in rents, and that there is only $12,000 to $15,000 due them; that the property is ivorth $30,000, is now rented for $2400 per annum, and would readily rent for $3500. Defendant further alleges that he has endeavored to settle the claim of said mortgage, and solicited a statement of the amount claimed thereon, but that Preston, Kean & Co. refused it; that he is ready and willing, and offers, to pay and satisfy such portion of the deed of trust as has not been paid, and as is a lien on the premises; ■offers, also, to pay all taxes assessed against the premises properly chargeable against him, and alleges that Hayes is insolvent, and has no interest in the premises, and it con-eludes by asking that the bill be dismissed.
    On the 11 tli of July, A. D. 1884, the court ordered that the receiver turn the property over to Gorham. On the 16tli of December, A. D. 1884, the complainant, by leave of court, .amended his bill by dismissing as to defendants Beers, Benj. D.=Lamb, E. Dayton and Augustus S. Lamb, and adding David Preston, Samuel A. Kean and James Payne, constituting the firm of Preston, Kean & Co., as parties defendants; and thereupon they filed their answer, admitting the allegations as set forth in complainant’s bill, reserving, however, all their rights as judgment creditors of said Gilbert A. Colby, individually or jointly, with any other parties. The cause was referred to the master in chancery, who made report on the 22d day of June, A. D. 1885. Exceptions were sustained to this report, and he was directed to report again, under certain directions given by the court.
    On the 22d of September, A. D. 1885, Preston, Kean & Co. and Hayes filed supplemental answers, in which they alleged, that, since the filing of the answers to the original bill, “Hayes assigned and delivered these notes to Preston, Kean & Co., who now are the owners thereof, and who now ratify all the acts herein of Farson and Hayes.” The master in chancery filed an amended report on the same day, which was approved by the court, and afterwards, the cause coming on to be heard, it was decreed as follows :
    “And this cause coming on for final hearing, upon the bill and amendments, the answers of Charles T. Gorham, Gilbert A. Colby, Preston, Kean, Payne and Hayes, the amended and supplemental answers of Preston, Kean, Payne and Hayes, and the defaults of others, the replication and report of the master, filed June 22, 1SS5, and the exceptions of said Gorham, and the supplemental report of the master, filed September 22, 1885, and oral testimony heard in open court, and the court being fully advised in the premises, doth find, that the allegations in said bill contained are true as therein stated, and the court finds there is due Preston, Kean & Co*, from Gilbert A. Colby, on these notes, and for solicitors’ fees, $24,438.86, with interest at six per cent, from June 8, 1885, and costs; that Charles T. Gorham, by reason of having recovered judgment in the Superior Court of Illinois, prior to the contract for sale of the premises to Colby, and having levied on the premises, and acquired title thereto by virtue of such levy and sale thereunder, ought to be allowed to redeem said lots 6, 7 and 8, in Day’s subdivision, for the sum of $1642.35, and interest at six per cent, from September 21, 1885,, and the payment of the costs of this suit to be taxed, and to redeem lots 1 to 8, inclusive, of block 4, of Hubbard, Crocker & Stone’s subdivision, for the sum of $18,825, and interest át six per cent, from September 21, 1885, and the payment of the costs of this suit to be taxed,—such redemption or redemptions to be made within thirty days from entry of this decree; that the two tracts of land be offered for sale separately; that the defendant Hayes has no further interest in this suit, he having, during its pendency, transferred all interest in said notes and mortgage, mentioned in complainant’s bill of complaint, to defendants, Preston, Kean & Co.; ordered, that defendant Colby pay to Preston, Kean & Co., within ten days from the entry of the decree, $24,438.86, with interest at six per cent, from June 8, 1885; also, the costs of suit to be taxed; ordered, that Gorham may redeem lots 6, 7 and 8, of Day’s subdivision, and lots 1 to 8, inclusive, of block 4, of Hubbard, Crocker & Stone’s subdivision, within thirty days, and on the terms mentioned in the findings. In case Colby or Gorham do not redeem as above, then these premises, (describing them,) with the buildings, improvements and fixtures, or so much thereof as may be sufficient to realize the amount so due said Preston, Kean & Co. from said Gilbert A. Colby, principal and interest, and also the costs of this suit, including the fees, disbursements and commissions on the sale herein mentioned, and which may be sold separately without material injury to the parties interested, to be sold at public vendue, for cash in hand, to the highest and best bidder; that the master proceed to advertise and sell, and give usual certificate of the sale to the purchaser; that he retain his fees, disbursements and commissions on said sale; that he pay to the officers of this court their costs of this suit, and that out of the remainder of said proceeds he pay to said Preston, Kean & Co., or to then-solicitor, Morton Culver, in case said lots in said Day’s subdivision be sold, the sum of $1642.32, and interest thereon at six per cent, from September 21, 1885, and from the sale of the other eight lots that they pay Preston, Kean & Co. $18,825, and interest at six per cent, from September 21, 1885. In case that said premises shall sell for more than sufficient to pay the two amounts of $1642.32 and $18,825, respectively, and interest and costs in this suit, then that said master, after making payments as aforesaid, bring such surplus money into court; ordered, that all defendants be forever barred, foreclosed from all equity of redemption and claim to these premises, if the same are not redeemed according to law. ”
    From this decree Gorham appealed to the AjDpellate Court for the First District, and that court, on hearing, affirmed the decree. (Gorham v. Farson et al. 18 Bradw. 520.) This appeal is from that judgment of affirmance.
    Messrs. Abbott & Johnson, Mr. E. A. Crane, and Mr. T. M. Cooley, for the plaintiff in error:
    The lien of a judgment, in a court of record,, attaches to all legal and equitable rights. It attaches -to the interest of a purchaser of land, as soon as the contract is made, whether it is recorded or not. Rogers v. Brent, 5 Gilm. 573; Tinney v. Walston, 41 Ill. 215; Niantic Bank v. Dennis, 37 id. 381; Ryhiner v. Frank, 105 id. 327; Walsh v. Richards, 41 Mich. 593; Lippincott v. Wilson, 40 Iowa, 426; Lathrop v. Brown, 23 id. 49; Blaney v. Hard, 14 id. 403; Dennegree v. Hahn, 13 id. 240; Freeman on Judgments, sec. 356.
    If Preston, Kean & Co. were the owners of the notes, instead of Hayes, the bill should have been prepared on that theory, and could not even be brought in Hayes’ name, for their benefit. Irish v. Sharp, 89 Ill. 262.
    It was error to give costs, or to add interest, after the date Gorham offered to pay. The offer to pay the attorney was the same as offering it to the principal. Hurd’s Stat. chap. 135, secs. 3, 4, 5; Ferguson v. Papp, 42 Mich. 115; Sayer v. Tapper, 35 id. 134.
    The amount of the decree was improperly computed, and is excessive. The decree is erroneous in giving only thirty, days for redemption. The statute gives one year; and, besides, it is error, in selling one piece of land, to pay the lien on another Avhich is in no Avay connected with it. Markoe v. Andras, 67 Ill. 37.
    The íavo liens being separate, could, under no circumstances, be enforced as one. Morse v. Byrne, 55 Mich. 595.
    The record shows, and the decree recites, that Gorham, by virtue of his sale under the execution against Colby, has become the absolute owner of the equity of redemption, and has his sheriff’s deed. It also finds that his judgment was a prior lien to so much of the amount included in the trust deed as Avas shown not to be purchase money, (amounting, with interest, at the date of the decree, to $3971.51,) so that, in legal effect, the trust deed, to that amount, was a junior mortgage on the land in question, and subject to Gorham’s judgment, and when Gorham obtained his sheriff’s deed this junior mortgage became absolutely extinguished as a lien on the land, and the court had no right to decree that the land be sold to pay this amount. Elder v. Derby, 98 Ill. 232; Hart v. Wingart, 83 id. 284.
    Mr. Morton Culver, for the defendants in error:
    As to the question of Gorham’s rights under his judgment, this court will find he has been in nowise deprived of any he ever had. In the case of Maghee v. Robinson, 98 Ill. 458, this court, citing with approval Fortier v. Darst, 31 Ill. 222, and Sumner v. Waugh, 56 id. 531, says: “A party taking an equitable title, to enforce which he must resort to a court of chancery, takes it subject to all infirmities existing against it, and can claim nothing under it Avhich the former owner could not claim.”
    The court rightly decreed the whole amount of the trust deed as against all except Gorham, and as to Gorham gave him the benefit of the $3200.
    Hayes was the owner of the notes at the time proceedings of foreclosure were begun, and by filing his bill declared all notes due for failure in payment of the first note and the interest on the other notes, as. he had a right to do. Terry v. Eureka College, 70 Ill. 236; Trust Co. v. Munson, 60 id. 371; Chapin v. Billings, 91 id. 539; Hoodless v. Reid, 112 id. 105.
   Mr. Justice Scholfield

delivered the opinion of the Court:

By the terms of the written agreement entered into on the 1st day of May, A. D. 1881, between Preston, Kean & Co., on the one hand, and Gilbert A. Colby, on the other, there was no connection between the leasing and the sale of the property in controversy, farther than when the terms in regard to the sale were complied with, the lease, would expire. There was no stipulation, expressly, or in effect, that a failure to ¡iay rent according to the terms in regard to the rénting should bar or impair the right of Colby to purchase, or that any arrears for rent should be a charge upon the land as for so much purchase money. On the contrary, the sale was to be effected simply by paying and giving notes for the stipulated sums, as agreed upon as the price, within the time specified. Nor was the agreement that the sale should be at the end of three years, from the 1st day of May, A. D. 1881. The language is: “Colby further agrees, within three.years from the date hereof, to purchase the above described premises, and Payne” (who acted in behalf of Preston, Kean & Co.,) “to convey, or to cause to be conveyed, to Colby, at the sum of $15,000, to be paid as follows, to-wit: $5000 cash, and $5000 in one year and $5000 in two years from the date of said cash payment, with interest oh said deferred payments at the rate of six per cent per annum, payable annually, and said deferred payments- to be secured by a mortgage or trust deed on said premises. * * * Colby also agrees to buy, and Payne” (who acted in behalf of Preston, Kean & Co.,)' “to convey, or cause to be conveyed, to Colby, lots 6, 7 and 8, of block 4, of Day’s subdivision, * * * for the sum of $1300, and interest thereon, at the rate of six per cent per annum, from date, and to pay the same, principal and interest, within one year from date. ”

Gorham’s judgment became a lien on Colby’s interest in these lots. (Breed v. Gorham, 108 Ill. 81). The judgment having been obtained, and an execution having been issued thereon, within a year after its date, before the agreement was entered into, the lien attached the moment that Colby obtained his interest,—i. e., the moment that the agreement was made; and when that lien, was enforced by levy and sale, and the execution of a deed pursuant thereto, by the sheriff, {there having been no redemption,) Gorham’s title related back to the commencement of the lien, and embraced the interest that Colby then had in the property. Elder v. Derby, 98 Ill. 232; Hart et al. v. Wingart, 83 id. 284.

Since, as to the eight lots, comprising block 4, of Hubbard, Crocker & Stone’s addition, the agreement was, that Colby was to buy, and Preston, Kean & Co. were to convey, within, and not at, the termination of three years, it must follow, that it was competent for Colby to make the payment, and the promissory notes, and deed of trust securing them, for the deferred payments, and Preston, Kean & Co. to make the conveyance on the 1st day of October, A. D. 1881; and since it was competent for Colby, in order to protect his title,' or Gorham, in order to protect his lien, to pay off one or all of the promissory notes at any time after their execution, it is impossible that the substitution of promissory notes, running for the times those run which were executed on the 1st day of October, A. D. 1881, for the cash payment, and for promissory notes for the deferred payments, running for the times those were to run, as provided by the agreement of May 1, A. D. 1881, can have denied or impaired any rights which Gorham had by virtue of his lien. But the lots wrere, by the contract of May 1, to be charged only with the payment of the purchase money,—those in each block for their own cost, respectively; and the deferred payments were to bear only six per cent interest. To add, therefore, to the burden of these lots, $3000, for money borrowed by the firm of Colby, Gardner & Co., and $200 for back rent due from Colby, and to require the payment of seven per cent interest, instead-of six per cent, upon the deferred payments, was, to that extent, to impair and destroy Gorham’s lien, and was inadmissible; and the circuit court, therefore, properly held, that while the execution of the deed on the 1st day of October, A. D. 1881, by Preston, Kean & Co., to Colby, and the taking back by them, from him, of a mortgage, at the same time, did not enlarge the rights of Colby in the lots, beyond what they were under the contract of May 1, A. D. 1881, it was not admissible, since Gorham’s lien had attached before that time, to destroy or sensibly impair Colby’s interest in the lots as it was fixed by the agreement of May 1, A. D. 1881.

But the mortgage or deed of trust executed on the 1st of October, A. D. 1881, contains this clause, ■ among others: “That in case of default in the payment of the said notes, or any or either of them, or any part thereof, or in case of the breach of any of the covenants or agreements therein mentioned, it shall then be lawful for the said party of the second part,” (i. <?., John Farson) “or his successors in trust, on application of the legal holders of said notes, or either of them, to enter into and upon, and take possession of, the premises thereby granted, or any part thereof; and to collect and to receive' all rents, issues and profits thereof, and in his own name, or otherwise, to file a bill in any court, ” etc. And the bill here alleges, that Frederick W. Hayes is the owner and holder of the notes secured by the deed of trust; “that none of said notes, or any part thereof, nor any interest, has been paid by said Colby, and that the said Frederick W. Hayes, who is now the holder and owner of all of said notes, has, by virtue of the terms of said trust deed, declared all of said notes, and the interest thereon, due and payable, and has requested your orator” (John Farson,) “to foreclose said mortgage.” These allegations are all disproved. The complainant, John Farson, testified, that he never had any conversation with Frederick W. Hayes about this trust deed, nor about the notes that it was given to secure. He repeated this more than once, and he also testified that he had no recollection of eyer having seen the trust deed before it was presented to him upon his examination as a witness. Samuel Kean, a member of the firm of Preston, Kean & Co., testified, in substance, that the property of the notes never went out of Preston, Kean & Co.; that the notes were simply transferred to Hayes in trust, in fact, for a purpose that was never-consummated,—the real ownership, all the time, remaining in Preston, Kean & Co.,—and they were, before the hearing, re-transferred to Preston, Kean & Co.

The decree, without any amendment having been made to-the bill, or any cross-bill having been filed, found that Preston, Kean & Co. were the owners of the notes, and decreed payment to them. There was' clearly such a variance between the allegations and proofs, and. the allegations and the decree, as renders it erroneous. Parkhurst v. Race et al. 100 Ill. 558 ; Hall v. Towne, 45 id. 493; Randolph v. Onstott, 58 id. 52. The bill should either have been amended after it was ascertained that Preston, Kean & Co. were the owners of the notes, and' the parties at whose instance the immatured indebtedness was declared due, or a cross-bill should have been filed setting up such facts. Jenkins v. International Bank et al. 111 Ill. 470; White et al. v. White, Jr. 103 id. 438; Purdy et ux. v Henslee et al. 97 id. 389.

But we are of opinion that it was not competent for Preston, Kean & Co. to declare the last note due, and have a bill for foreclosure filed on the 3d day of May, A. D. 1884, when this bill was filed. The evidence is uncontradicted, that in February, A. D. 1884, the attorney and agent of Gorham applied to Preston, Kean & Co., on behalf of Gorham, to ascertain what amount, included in the notes secured by the deed of trust, was due from Colby to them on the original purchase of the lots, and which Gorham was, therefore,-bound to pay. They refused to converse with him upon the subject, but referred him to their attorney, Mr. Culver. Mr. Culver informed him that the amount was $19,500, and $3125 interest thereon, and soon afterwards, Mr. Culver, in another conversation with the attorney and agent of Gorham, in regard to the amount that Gorham should pay to Preston, Kean & Co. on account of Colby’s original purchase of the lots, repeated the demand that he should pay $19,500 principal, and $3125 interest thereon, and informed him that Preston, Kean & Co. would not accept any less sum. At no subsequent time, before filing the bill, did they indicate that they would accept any less sum than that thus demanded by their designated agent—for the purpose of declaring the amount of their demand—Mr. Culver ; and that demand is repeated in this bill. It has been seen that that amount included $3200, and one per cent per annum of interest on the amount actually due, besides seven per cent per annum interest on the $3200, which Colby was not obligated- to pay by the terms of the agreement between him and Preston, Kean & Co., of May 1, 1881, and which, therefore, was not chargeable against Gorham. Where a creditor, in advance of an offer to pay, or in response to such offer, informs the party under obligation to pay, that he will not accept the amount actually due, in discharge of the indebtedness, the party under obligation to pay is relieved of the duty of tendering the amount actually due. Wight v. Gardner, 66 Ill. 95; McPherson v. Walker, 40 id. 371; Dwen v. Blake, 44 id. 136.

Gorham, then, not having been in the wrong in not having paid or tendered the amount actually due, it was inequitable to declare a forfeiture and file a bill before the last note was due.

Since the decree below must be reversed for these reasons, it is only necessary to speak of the form of the decree, to avoid repeating, in the future, what we deem to be erroneous therein.

By the terms of the contract of May 1, A. D. 1881, the indebtedness incurred in the purchase of the eight lots constituting block 4, was to be charged against those lots, and the indebtedness incurred in the purchase of the three lots was to be a charge against those lots: It would, therefore, manifestly violate the rights of Gorham, under that contract, to charge, in any contingency affecting his right to redeem, the' indebtedness incurred in the purchase of the first mentioned lots, against the second mentioned lots, or the reverse. So, also, when Gorham’s title became perfected, no equity of redemption remained in Colby. He, thereafter, did not have, in any event, any further interest in the property. Preston, Kean & Co.’s right of foreclosure was, therefore, then limited to the amount fixed as the purchase price by the contract of May 1, 1881, and interest thereon at six per cent per annum. The evidence sufficiently proves that the value of the property is greater than the amount that Gorham is required to pay under that contract, and so there can be no strict foreclosure, under our practice. Gorham is therefore entitled to redeem by paying the amount chargeable against him, with current interest, at any time within twelve months from the day of sale. No one else having a right to redeem from the sale, the decree should" not direct the sale to be for an amount, chargeable against Colby or some one else than Gorham, greater than that which Gorham is required to pay. Gorham having a right to redeem by paying a certain amount, his property can not be subjected to sale for a greater amount. There may, undoubtedly, in foreclosing mortgages, often, in the same case, be separate decrees on account of the distinct indebtedness of different parties; but the distinct indebtedness of different parties can not all be charged against the mortgaged property, unless they are all liens upon the property, under the mortgage, prior to the title of the owner of the equity of redemption.

The evidence showed some outstanding title or claim in Preston, Kean & Co. on account of taxes. It is not claimed that they have acquired a title, adverse to Gorham, in that way, and it is clear they could not. The amount, however, may be important in taking an account between the parties. The evidence shows that Colby, in October, A. D. 1881, turned over the possession of these lots to Preston, Kean & Co., informing them that he should have nothing more to do with them. They accepted this possession, and thereafter necessarily occupied the relation, to Colby, of mortgagees in possession, and, as such, it was their first duty to pay, from rentq, or profits derived otherwise from the use of the property, all claims for taxes. It is claimed, and evidence is given tending to support the claim, that this relation was subsequently destroyed by a decree of court, on bill filed by Gardner, who had been a partner of Colby, against the two, Colby and Preston, Kean & Co., to dissolve partnership, ordering thes'e lots to be placed in the possession of a receiver, and subsequently to be sold, as well as certain personal property, by the receiver, for the payment of the $3000 borrowed by Colby, Gardner & Co. from Preston, Kean & Co., and included in the deed of trust, as has been before seen. These lots were not the property of Colby, Gardner & Co., but the individual property of Gilbert A. Colby. Under no principle had a court of equity, at the instance and on behalf of the members of that firm, any right to interfere with the individual property of members of the firm, which had been, in good faith, previously devoted to the payment of the debts of the individual; and we are unable to comprehend how, if the facts had been presented to the court by Preston, Kean & Co., their possession could have been disturbed. The proof in this record is not satisfactory, because not full in this respect. Gorham was not made a party to the suit, and Gilbert A. Colby was not personally served with process, as we understand the record, but Preston, Kean & Co. were made defendants, and were personally before the court. If Preston, Kean & Co. failed, in that suit, to assert their rights to the possession, as seems apparent from the evidence before us-, they can not, as against the failure to perform their duty in relieving the property from any claim on account of taxes, allege this deprivation of possession of the property.

The judgment of the Appellate Court affirming the decree of the circuit court, as also that decree, is reversed.

Judgment reversed.

Mr. Justice Magbuder did not take part in the decision of this case.


author: Mr. Chief Justice Scott

text:
    Benjamin F. Felix v. William Scharnweber.

      Filed at Ottawa January 25, 1887.

    1. Appeal—reviewing facts—and what constitutes a question of fact. In an action by the inventor of a rope reel, against the manufacturer of the same, to recover the royalty agreed to be paid by the latter to the former on all reels made and sold by the latter, the question how many reels were made and sold -under the contract, is one of fact, not reviewable by this court, it being bound in that regard by the finding of the Appellate Court in affirming the judgment of the trial court.
    2. Evidence—relevancy. The defendant in an action to recover of him the royalty agreed to be paid to the plaintiff on certain machines made and sold by the former, claimed that the machine made and sold by him was a new and different one, invented by a third party, and on the trial offered to prove what order or direction such third party gave when he ordered the new machine made, which the court refused to admit: Held, no error in the ruling, as- the proposed testimony would have opened collateral issues not really involved.

      3. Same—whether irrelevancy a ground of reversal. On the question whether certain rope reels made and sold by a defendant under a contract with the plaintiff, by which the defendant was to pay him a royalty, the plaintiff was allowed to testify that he had suggested to the defendant some improvements to the reel, which were adopted, in part, at least, there being other proof that there was no difference, in principle, in the machines made and sold and the one covered by the letters patent, to which the contract related: Held, that the* error in the admission of the plaintiff’s testimony, if any, was one that could not have seriously affected the merits of the case, and was therefore no ground of reversal. *
    4. Pbactice—improper remarks of counsel in argument. In the closing argument to the jury, in a suit to recover for an alleged breach of contract, the plaintiff’s counsel commented on the fact that his client, in whose favor a judgment was rendered, was a poor man, and that defendant was a man of wealth and leisure, traveling in Europe. The court sustained an objection to the remarks, and said that such considerations should not be regarded by the jury: Held, that while the remarks of counsel were very objectionable, yet, when taken in connection with the advice of. the court to the jury,- the error was not of such gravity as to require a reversal of the judgment.
    ' Appeal from the Appellate Court for the First .District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.
    Messrs. Flower, Remy & Gregory, for the appellant.
    Mr. H. F. Yallette, Mr. F. J. Grieein, ancf Mr. Henry Decker, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court r

This suit was brought in the circuit court of Cook county, by- William Scharnweber, against Benjamin F. Felix, to recover a royalty on each machine, called a “rope reel, ” which defendant should sell. The declaration contains two special counts on the written agreement between the parties, andi also the common counts, to which the general issue was filed,, and a notice that certain special facts would be proved upon the trial, as a defence to the action. The cause was submitted to a jury, who returned a verdict for plaintiff, upon which the court rendered a judgment. That judgment was afterwards affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.

The written agreement between the parties recited, that plaintiff and defendant were joint proprietors of a certain patent for an improved “rope reel, ” and that defendant should have the exclusive control of the manufacture and sale of the reel. By the terms of the contract, defendant was obligated to pay plaintiff a royalty on each and every rope reel sold by him, to.be paid on the last business day of each and every month. The principal question made on the trial was, whether the reels manufactured and sold by defendant came within the terms of the written contract. On this question, the court, at the instance of the defendant, instructed the jury, that, under the contract declared on, defendant was only liable for unpaid royalty, if any, on such reels sold by him or his firm as are contemplated or covered by the terms of the contract, and that he was not liable, in this suit, for royalty on any other or different reels, whether invented by plaintiff' or any one else. The charge of the court, in this respect, was as full and favorable to defendant as the law would warrant. It will be perceived the -issue was confined to the number of reels sold under the contract. All others were expressly excluded. It was a question of fact, then, how many machines were sold by defendant, under the contract, for which plaintiff was to receive a royalty. That, of course, is a question this court can not review. It is conclusively settled by the findings of the lower courts, where such matters are properly cognizable.

It is assigned for error, that plaintiff was permitted to prove, perhaps by his own testimony, principally, that he suggested some improvements to the reel covered by the letters patent, and which were adopted, in part at least. There was no serious error in the admission of this evidence. It was proved by the pattern maker, there was no difference in principle in the machines manufactured and sold by defendant and the one covered by the letters patent, and on which defendant was obligated to pay a royalty. Assuming that to be so, as must be done, as the case comes before this court, there was no error in.the admission of the objectionable evidence,—certainly none that could seriously affect the merits of the case, under the instructions of the court. Nor was there any error in refusing defendant the privilege to prove what order or direction Mason, who, it is claimed, invented the new reel, gave, when he ordered it made. That would have opened collateral issues not really involved in the cause, and the court very properly excluded the inquiry.

The third and last ground of error insisted upon is, that counsel for' plaintiff, in his closing argument to the jury, commented on the fact his client was a poor man, and that defendant was a man of wealth and leisure, traveling in Europe. Undoubtedly, this was very objectionable conduct on the part of counsel, but, on objection being made, the court sustained the same, and remarked that such considerations should not be regarded by the jury. While this court does not wish to be understood as approving the conduct of counsel, it can hardly be said, even under the strictest rule recognized by any of the cases on this subject, that which is alleged against him is of sufficient gravity to warrant the reversal of the judgment, and especially in view of the fact the court at once advised the jury such considerations should not be regarded.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Andrew J. McDuffee et al. v. John Sinnott et al.

      Filed at Ottawa January 25, 1887.

      1. Amendment—of bill, changing'a complainant to defendant. It is within the discretion of the court to allow the amendment of a bill for partition to be so amended as to make one of the co-tenants a defendant, instead of a complainant; and the allowance of such amendment affords no just ground of complaint.
    2. Limitation—available for attack as well as defence. Where the bar of the Statute of Limitations has become absolute, and the party entitled is in possession under it, it is thereafter just as available for attacking as for defensive purposes, and its availability in this respect will not depend upon the occupant continuing in the actual possession of the property. The title acquired by such bar may be asserted against all the world, including the paramount' owner. . .
    Appeal from the Circuit Court of Lake county; the Hon. Charles Kellum, Judge, presiding.
    Mr. A. N. Taggert, for the appellants: -
    The title of the appellees was only such as their ancestor derived under the Statute of Limitations, if title may be acquired that way. The Statute of Limitations has not the effect of conveying title-to a party. Newland v. Marsh, 19 Ill. 381; Harding v. Butts, 18 id. 502; McCagg v. Heacock, 42 id. 150; Sturgis v. Crawingshield, 4 Wheat. 122; Ogden v. Saunders, 12 id. 213.
    The only effect of a Statute of Limitations is as an. armor of defence. 3 Washburn on Real Prop. pp. 52, *449, sec. 2; Angelí on Limitations, (2d ed.) 397; 7 Wait’s Actions and Defences, 224, *225; Cooley on Taxation, 381, *383.
    If John Sennott, Sr., ever had any right to have title to the farm in question perfected in himself on any terms, that right was long since barred. Hodgen v. Guttery, 58 Ill. 432; Freeman on Judgments, p. 461, sec.. 374.

      Appellees claim no right save such as they inherited from him. Before they can have partition, or removal of a cloud, they must show, in fact, every essential of a Iona fide right and valid title in themselves, and no presumption or fiction of law should be entertained in that behalf. Williams v. Wiggand, 53 Ill. 233; Wing v. Sherrer, 17 id. 200; Emery, v. Cochran, 82 id. 65; Ross v. Young, 5 Sneed, (Term.) 627.
    They must rely solely on the strength of their own title, and not on the weakness of that of defendants. Huntington v. Allen, 44 Miss. 654; 1 Wait’s Actions and Defences, 666.
    Messrs. Cook & Upton, for the appellees:
    That all conflicting titles can be investigated and determined in all suits for partition of real estate, there can be no controversy. Gage v. Lightburn, 93 Ill. 248; Henrichsen v. Hodgen, 67 id. 179.
    That a party may acquire a title under the limitation laws, which he may assert, see Hale v. Gladfelter, 52 Ill. 91; Hinchman v. Whetstone, 23 id. 185; Emery v. Cochran, 82 id. 65; Wing v. Sherrer, 77 id. 200; Williams v. Wiggand, 53 id. 233; Ross v. Cobb, 48 id. 111.
    A right to land acquired by limitation is affirmative, and may be enforced. See Hinchman v. Whetstone, 23 Ill. 185; 6 Wait’s Actions and Defences, 436.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal by Andrew J. McDuffee and others, from ■ a decree of the circuit court of Lake county, awarding partition of a certain quarter section of land, at the suit of John Sinnott and others, claiming as heirs-at-law of John Sinnott, . deceased.

The bill in the case, which is clearly sustained by the proofs, shows that Isaac T. Townsend and wife, on the 14th day of July, 1852, conveyed the land in controversy to John Sinnott, the father of the complainants, and of Maria E. Bennett, one of the defendants; that within a short time thereafter, Sinnott went into possession of the land under the deed, and resided thereon with his family till the time of his death, which occurred in December, 1855; that Sinnott died intestate, leaving him surviving, six children, his only heirs, to-wit, Edmund, Hannah, Maria, Anna, James and John; that James quitclaimed his interest in the land to John, May 25, 1858; that the heirs, either by themselves or tenants, were in the actual occupancy and undisputed possession of the premises from the time of Sinnott’s death up to the time of filing the present bill, in November, 1878; that appellee John Sinnott, acting on behalf of himself and the other heirs, paid all taxes legally assessed on the premises, from 1856 to 1873.

Such are the material facts, so far as the title of the Sinnott heirs is concerned. The title upon which they rely is based exclusively upon the Statute of Limitations.

All the heirs having an interest in the property were joined as complainants in the bill as originally drawn. Pending the suit, however, the court permitted the bill to be amended by making Maria, together with her husband, Clark T. Bennett, a defendant instead of a complainant, and this is assigned for error. The allowing of the amendment, we think, was within the discretion of the court, and affords no just ground for complaint, notwithstanding it materially changed the character of the bill. The interest of Bennett and wife being identical with that of complainants, as shown by the bill, they made no defence, suffering a decree pro confesso to go as to them.

The defendants, other than Bennett and wife, claim title to the premises as heirs-at-law of Henry Jackson, who appears to have died in possession of the premises in 1845 or 1846. In the view we take of the case, however, it is unnecessary to enter upon a discussion of the Jackson title, for, conceding, for the purposes of the argument, it was the older and better title, yet it is clear, upon the facts as presented by the record, it was barred at, the time of the commencement of this suit, both by the twenty and seven years’ limitation. The only answer made to this position is, that limitation acts can only be availed of as. a shield, and not as .a sword, and a number of authorities are referred to as sustaining this position. In view of the repeated decisions of. this court, it would be a fruitless consumption of time to .enter upon a discussion of .the cases decided outside of this .State, for whatever the rule may be elsewhere, it is now well settled in this State that •whenever the bar of the statute has become absolute, and the party entitled is in possession under it, it is thereafter just as available for attacking as for defensive purposes, and its availability in this respect will not depend at all upon the occupant continuing in the actual possession of the property. His rights in that respect are. precisely the same as those of any other absolute owner of land. He can vacate it or occupy it, just as convenience or interest may dictate. Paullin v. Hale, 40 Ill. 274; Whitney v. Stevens, 77 id. 585; Hinchman v. Whetstone, 23 id. 185; Hale v. Gladfelder, 52 id. 91; Chiles v. Davis, 58 id. 411; McCagg v. Heacoch, 42 id. 153; Jacobs v. Rice, 33 id. 369. Some of these cases, it is true, do not cover the entire, proposition as above laid down, but they all support it with more or less directness, and, .when ■taken together, fully, establish it.

' It must be admitted, that expressions of opinion are to be found, in some of the earlier cases, in respect to the manner in which these limitation acts operate, which are not as harmonious as they might be; but this is a matter of little importance, as the cases not overruled all concur in establishing the proposition that when the bar of the statute becomes absolute, in the sense above stated, the occupant thereby acquires such a title as he may successfully assert against all the world, including the paramount owner himself, except such as are laboring under disabilities.

Other questions are discussed in the briefs, but they are of a subordinate character, and not deemed of sufficient importance to require1 special '1101106. Suffice it to say, in general terms, that none of the objections urged against the regularity of the proceedings in the court below, or the propriety Of the decree rendered, are deemed of sufficient importance to require a reversal.

The decree will be affirmed.

Decree affirmed.-