author: Mr. Justice Scott

text:
    Walter S. Hurd v. Ed. Ascherman et al.

      Filed at Ottawa March 27, 1886.

    1. Chancery—retaining a case for all purposes. Where a court of equity rightfully obtains jurisdiction of a suit, it will retain it for all purposes germain to the subject matter of the original bill, although some of the matters alleged therein may have ceased to be matters of contention.
    2. Same—multifariousness. A creditor’s bill seeking relief against different defendants, for separate and distinct matters, by setting aside different1 conveyances to different persons, and a judgment confessed and a chattel mortgage alleged to be fraudulent, is not obnoxious to the charge of multifariousness.
    3. Same—hearing without replication. Where a decree finds that the cause was heard on the pleadings, etc., including a replication, the decree at variance with the answer will not be reversed merely because no replication appears in the transcript, but leave will be given to file one nunc pro tunc.

    4. Same—evidence to overcome sworn answer. A sworn answer to a bill in chancery must be taken as true unless overcome by the testimony. Where such answer sets up a material fact responsive to the hill, which is denied by two witnesses, and is sustained by the testimony of the defendant answering and another defendant, they all being equally credible, it can not be said the answer is overcome.
    5. Fraudulent conveyance—extent of liability of fraudulent grantee or mortgagee. A party who takes a chattel mortgage, which is fraudulent as to creditors of the mortgagor, on creditor’s bill setting the mortgage aside, should be charged only with what he received for the property mortgaged, or, at most, with what he might with reasonable diligence have made out of the property that came to his hands. He should not be charged with property embraced in the mortgage that did not belong to the mortgagor, and which was claimed by others.
    6. Error—not assigned, not considered. Where errors and cross-errors are assigned in the Appellate .Court, and the decree reviewed is affirmed in all respects, and the appellant in that court again appeals to this court, and he alone assigns errors, no objections to the original decree can be considered in behalf of the appellees. Failing to assign cross-errors to the -ruling of the Appellate Court, it will be presumed they are satisfied.
    Appeal from the Appellate Court for the Secoird District; —heard in that court on appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. J. J. & G. Tunnicliee, for the appellant:
    The hill is multifarious. It seeks to set aside deeds made to different persons for separate pieces of property, and which have no connection with each other. On bill against Hurd to set aside a deed to him, the right to set aside a deed to another person is not involved. 1 Daniell’s Ch. Pl. and Pr. 335; Cook’s Eq. 182; Supervisors v. State’s Attorney, 31 Ill. 74.
    The answer, being under oath, can not he overcome or disproved except by two witnesses, or one witness, with strong corroborating circumstances. Phelps v. White, 18 Ill. 41; Myers v. Kenzie, 26 id. 36; Russell v. Russell, 64 id. 250; Wellday v. Webster, 42 id. 108; Weightman v. Hunt, 37 id. 123.
    But in any event the answer must be taken as true, because no replication wras filed. Chambers v. Rowe, 36 Ill. 171; Trout v. Emmons, 29 id. 437.
    Reynolds had the right to prefer Hurd, who was a creditor, and such preference will not render the transaction fraudulent. Tomlinson v. Matthews, 98 Ill. 178; Goemble v. Arnett, 100 id. 34; Axtell v. Cullen, 3 Bradw. 537; Gray v. St.John, 35 Ill. 222.
    Fraud is never presumed, but must be shown. Ward v. Moore, 7 Bradw. 134; 8 id. 322.
    Something more than suspicions is required to prove fraud: The evidence must be clear and cogent. (Shinn v. Shinn, 91 Ill. 477.) The purchaser must also participate in the fraudulent purpose. Ewing v. Runlde, 20 Ill. 448; Brown v. Riley, id. 85; Wilson v. Pearson, 26 id. 38; Myers v. Kenzie, id. 36.
    Messrs. Williams, Lawrence & Bancroft, and Mr. W. B. Bradford, for the appellees:
    Hurd was a proper, and necessary party to the bill, even as to the Benton property, as he claimed an interest therein under the lien of his judgment. He obtained affirmative relief on cross-bill, and hence can not be heard to say that he was improperly joined as a defendant in the original bill.
    Replications were filed to the answers, and the record shows that the cause was heard -upon bill, answers, replications and proof.
    Counsel also reviewed and discussed the evidence at some length, contending that it established fraud in the several conveyances from Reynolds to Hurd, and Mrs. Benton, and also the judgment in favor of Hurd, and the chattel mortgage to him. •
   Mr. Justice Scott

delivered the opinion of the Court:

This ease, as it now comes before the court, is much less complicated than when it was heard either in the circuit or Appellate Court. Many of the questions litigated in those courts have not been assigned for error in this court, and are therefore not now before it for consideration. It will be necessary, however, to state briefly the substance of the record concerning some of them, in order to a clearer understanding of the questions presented for decision.

The bill is the ordinary creditors’ bill, and was brought by Ed. Ascherman and Herman Signitz, in the circuit court of Knox county, against Leander B. Beynolds, E. B. Benton, Walter S. Hurd, and others alleged to have some interest in the subject matter of the litigation, as judgment creditors of the common debtor or otherwise. These creditors of the failing debtor, on petition, by leave of the court, became co-complainants with the original complainants, but it will not be necessary, in the discussion that is to follow, to notice them further. It is- alleged in the bill, as the truth is, that complainant recovered a number of judgments against Leander B. Beynolds, amounting in the aggregate to quite a considerable sum. Executions issued on these judgments to the sheriff, were returned nulla bona. Afterwards this bill was filed by complainants to set aside conveyances shortly before made by the defendant in the execution, of lands .which he had previously owned, as fraudulent and void as to his creditors, a-n'd to subject the same to the payment of the judgments of complainants. One of the deeds alleged to be fraudulent, was the deed of Beynolds and wife to Elizabeth B. Benton, of a quarter section of land situate in Knox county. Another was a deed of a lot or piece of land- situate in the city of Galesburg, made by Beynolds and wife to Walter S. Hurd. On thó hearing, it appears the circuit court dismissed complainant’s bill as to both of these tracts of land, and granted relief on the cross-bills filed by the respective grantees, Mrs. E. B. Benton and Walter S. Hurd. On the appeal of Walter-S-. Hurd, to the Appellate Court for the Second District, from another portion of the decree of the circuit court, complainants assigned cross-errors as to the dismissal of their bill as to Mrs. E. B. Benton, the grantee of the quarter section of land mentioned, and as to the granting relief to her on her cross-bills, but the decree was in all respects affirmed by the Appellate Court, and as complainants have filed no cross-errors in this court' on the decision of the Appellate Court, no questions concerning the fairness or validity of the conveyance of the quarter section of land mentioned can be considered by this court on this appeal. No cross-errors have been assigned by complainants or any one else as to that portion of the decree of the circuit- court that found the conveyance to Walter S. Hurd was fair and valid, nor to the relief granted to him on his cross-bill concerning the tract of land situate in Galesburg that had been conveyed to him. Only Walter S. Hurd has assigned errors on this record, and so far as this decree affects his land, it is in his favor, and as to the tract claimed by Mrs. Benton, he does not, by his pleadings or otherwise, claim any interest in it. It follows, therefore, that all questions made as to those tracts of land must be considered as disposed of by the decisions of the lower courts, and therefore they are not now before this court, and no further reference will* be made to them, unless it may become necessary to do so in considering other questions made on the record.

It is alleged in the bill, the judgment entered up in the Superior Court of Cook county in favor of Walter S. Hurd and against Leander B. Reynolds, was wrongfully confessed, and that the levies made under the execution issued -thereon were made for the purpose of covering up the property of the execution debtor, and keeping it from his bona fide creditors, and as to whom the judgment is fraudulent and void. After the hearing of the cause had been commenced, at the June term, 1884, complainants obtained leave from the court to further amend their bill, which they did, and alleged, that on the 11th day of August, 1879, Leander B. Reynolds, then being indebted in the sum before mentioned in the bill, made, executed and recorded a chattel mortgage to Walter S. Hurd, purporting to secure a debt of $1475, due in fifteen- months from the date of the mortgage, which mortgage-' covered substantially all" the personal property then owned by Reynolds, subject to execution. ' It is charged this chattel mortgage was1 merely" colorable, and made to enable Reynolds to cheat and defraud complainants and other creditors. Afterwards, on the 24th of December, 1884, another amendment to the bill was made, to the effect that after the obtaining of the judgment in the Superior Court, Reynolds delivered to the attorneys of Hurd valuable accounts and claims, the property of Reynolds, of the value of $1000, and that his attorneys collected, by execution issued on such judgment and from the accounts, the sum of $4568.68, which sum the attorneys paid over to him, le'ss their fees. It is charged Hurd holds the money, and property obtained under the chattel mortgage," and "from the accounts and on the judgment, in trust for the creditors of Reynolds, and sliould-be required -to aeeounfrffor the same to complainants. In his original answer, defendant, Hurd, admits he obtained a judgment against Reynolds in the Superior Court, but denies it was obtained by fraud or collusion, or that levies were made on the execution issued on such judgment to cover up the land or other property of Reynolds, to prevent complainants or other creditors from obtaining satisfaction of their judgments. On the contrary, he avers the judgments were obtained for so much money actually due to him from Reynolds. In his answer to the last amendment to the bill, defendant, Hurd, admits the making of the ’chattel' mortgage, as stated in the bill, "but denies it was merely colorable, or that it was made to enable Reynolds to cheat and defraud his creditors.

Among other matters, the court found by its decree that the judgment confessed the 9th of August, 1S79, by Reynolds, in the Superior Court, in favor of Hurd, was and is a fraud upon the creditors of Reynolds, and the judgment note on which the judgment was confessed was without adequate consideration, and void as against complainants and other bona fide creditors of Reynolds, and was executed for the purpose, and was a part of a scheme to defraud, hinder and delay creditors in the collection of their just claims. The court, further found the amount of the judgment so entered is the sum of $4561.68, and after the obtaining of such fraudulent judgment, Reynolds, for the purpose of hindering and delaying and defrauding his creditors, took from his place of business in Chicago, all the books of account, containing a large amount of claims, and delivered the same to the attorneys of Hurd, who accepted the same for him, and that there has been realized upon such claims and judgment, from the assets of Reynolds, for the benefit of Hurd, the sum of $4412, and that sum was realized as early as November 19, 1879. The court also, found the chattel mortgage of the date of August 11, 1879, for the sum of $1475, given by Reynolds to Hurd, was executed as- a part of a scheme to defeat, defraud and hinder and delay creditors of Reynolds, and was without consideration, and was wholly void as to complainants. The court thereupon decreed that Hurd held the sum realized on the judgment, and the amount of the chattel mortgage, as trustee, for the benefit of complainants in the original bill, and referred the cause to the master to compute the interest on the sums realized upon such claims, at six per cent per annum, on the judgment rendered August 9, 1879, and" that he compute the interest at six per cent on the consideration of the chattel mortgage, $1475," from the 11th day of August, 1879. It appears the master found, and so reported, that there had been realized by Hurd on the judgment of August 9, 1879, the sum of $4412, from which the' court ordered that an attorney’s fee of $500 should be deducted, which would leave $3712, which, with interest at six per cent on the sum from November 19, 1879, amounts to $5110.36. As' to the chattel mortgage of August 11, 1879, for $1475, with interest at six per cent from that time •to the date of the report, amounted to $1958.27, which sum,added to the amount found due on the judgment, made a total amount of $7068.63. Exceptions taken to the master’s report by Hurd were all overruled, and thereupon the court entered a decree against Walter S. Hurd for the sum of $7068.63, that he pay the same within thirty days from the date of the decree, and in default of such payment that complainants have execution therefor. It -was -further ordered -that Reynolds 'and Hurd pay the costs of this proceeding, and that Reynolds and Hurd and their attorney deliver at once to the master, each and every book and books of account used in and about the business of Reynolds in Chicago, and all moneys which have come into the hands of either of them from the estate of Reynolds. The usual order for the distribution of the fund to be received under the decree was made. The decree of the circuit court was affirmed in the Appellate Court for the Second District, and Walter S. Hurd brings the 'cause to this court on appeal.

Narrowing, as must be done, the discussion to that part of the decree of the circuit court that affects Walter S. Hurd, the only party assigning errors in this court, the views entertained on this question may he shortly stated.

It is said there is a misjoinder of matters alleged in the bill, for the reason relief is asked against different defendants for separate and distinct matters that can not be litigated in the same action. This is not true in that sense that would render the bill multifarious. Defendant, Hurd, was á proper party to the original bill, ‘inasmuch as his execation had been levied on the land which had been conveyed to Mrs. Benton by the failing debtor, and also because he claimed land that had been conveyed to him by the debtor, the validity of'which was challenged by the allegations of this bill. Some of these matters ceased to be matters of contention between the parties, but equity having rightfully obtained jurisdiction of the case, will retain it for all purposes germain to the subject matter of the original bill.

As respects the judgment confessed by Beynolds in favor of Hurd, in Chicago, it can hardly be said the testimony overcomes the sworn answer of Hurd as to the actual indebtedness for which it was rendered. It is averred in the answer, the sum- for which the judgment was entered was actually due from Beynolds to Hurd. The answer is under oath,'and unless overcome by the testimony it must, stand as true.. All the testimony that militates against the good faith of the consideration of the note on which the judgment was rendered, is the testimony of Murphy and Burke, and treating the witnesses as of equal respectability, that is equally balanced by the testimony of Hurd and Beynolds, both of whom testify the judgment was confessed for an actual'indebtedness. That leaves the answer unimpeached, and it must be regarded as true in that respect.

But as to the chattel mortgage, it must be regarded as fraudulent, as to the creditors of Beynolds, among whom are complainants. It was not made' until after the judgment in Chicago had been confessed, and then Hurd knew that Beynolds was failing and had become wholly insolvent. It seems the chattel mortgage was made and recorded before Hurd arrived _ at Galesburg, where the mortgagee resided. It is claimed it was given-to secure loaned money. But no money was advanced to Beynolds at the time. Even the draft that was given was afterward surrendered, and if the money was paid to Beynolds at all, it was paid to him in small sums, as he desired it. The whole affair has the appearance of a scheme devised to secure to Reynolds money as he should thereafter need it, and whether it was fraudulent in fact or not, it was fraudulent in law as to creditors. It does not follow, however, that Hurd should be charged, in the account to be taken, with the face value of the chattel mortgage, and interest. Equitably,' he should only be charged with what he received for the property embraced in the mortgage, or, at most, with what he might, with reasonable diligence, have made out of the property that came to his hands or to his agent’s.. Some of the property embraced in the mortgage was claimed by other persons, and certainly, he should not be charged with the value of that which did not belong to the mortgagor.

The point is made, the answer of Hurd should stand, because the transcript of the record contains no replication. The decree finds, however, there was a replication, and the case seems to have been tried oh the understanding a replication had been filed. There might have been a replication, and it had been lost from the files. However that may be, leave will now be given to file a replication nunc pro tunc.

Some equitable disposition should be made of the costs in the trial court. Hurd should not be.required to pay all the costs. How that can be best done should be left largely to the discretion of the circuit court. Complainants failed to sustain their bill as to Mrs. Benton, and as to some matters alleged against defendant, Hurd, and these matters should be considered in making an equitable division of the costs.

The decree of the Appellate Court will be reversed, and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scott Mr. Justice Sheldon,

license: Public Domain

text:
    William Hollingsworth v. Orange W. Koon et al.

      Filed at Ottawa March 27, 1886.

    1. Bill to redeem—in case of two mortgages—apportionment of the debts. On bill to restrain the sale of lands under powers of sale in two separate mortgages, and for an account of the sum due on each, and for redemption on payment of the sums found due, the court found the total sum due on both mortgages, making no apportionment, so that the land in each should bear its just proportion of the debt: Held, that the decree was erroneous in this respect.
    2. Same—terms ilpon which redemption should be allowed. On bill to redeem from mortgages, the court found the amount due from complainant, and decreed that he pay that sum, with interest and costs, as a condition to relief, to the clerk of the court, for the benefit of such of the defendants as should appear to be entitled thereto, within three months, and further decreed that in default of his paying the defendants said amount, with interest, his bill should stand dismissed: Held, that the decree was improper, oppressive and erroneous.
    3. In such a case the proper course is for the court, after finding the sum due from the complainant, to direct its payment, and in default thereof order a sale of the lands, with the usual statutory redemption.
    4. Costs—on bill to redeem. Where a bill is filed by a mortgagor to have an account taken of the sum due under the mortgage, which sets up usury and various usurious payments, as to which there is a sharp contest, and the court finds there is much less due the defendants than was claimed, the court should require each party to pay his own costs.
    5. Chancery—practice on sustaining exception to the master's report. Where an exception is sustained to an item of charge in a master’s report wrongfully allowed by the master, the report should be corrected by striking out such improper charge.
    6. Gross-errors—when necessary. Where the court, in rendering a decree upon the master’s report, deducts from the sum reported, an item of charge, to which no exception was sustained, such ruling must stand, where no cross-errors are filed by the party injuriously affected thereby.
    7. Where an exception to an item of charge in a master’s report, of $1099.30, with interest thereon, was sustained by the court, and a decree was rendered for the amount reported due, less $1000, being an item also excepted to, it was held, that the decree must be reversed, as being for too much, there being no cross-errors assigned as to the ruling of the court on the exceptions.

      8. Practice—as to specific and general objections. Where an error occurs in the progress of a trial, the usual practice requires specific objections to be made; but when a court has taken time to consider, and pronounces its final decree, the objecting party is not required to make specific objections, but may except generally to the decree..
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Messrs. Bull, Strawn & Ruger, and Messrs. Doyle & Morris, for the plaintiff in error:
    This being different from an ordinary bill, to redeem, each party should have been required to pay his own costs. Brinkerhoff v. Lansing, 4 Johns. Ch. 78; Brooks v. Byam, 2 Story, 553; Ross v. Gordon, 2 Munf. 289; Hoffman v. Marshall, 1 J. J. Marsh. 64.
    The court should have ordered a resale. Murdock v. Empire, 19 How. Pr. 79; Lansing v. McPherson, 3 Johns. Ch. 424.
    The court erred in cutting off Hollingsworth’s right of redemption in lands set forth in. both mortgages, unless on payment of a gross sum. The amount found due was an entire debt, and should have been apportioned on each of the mortgages pro rata, according to the value of each tract, so that if Hollingsworth was not able to redeem from both of said mortgages, he might from one of them.
    The decree is for too large a sum, and the court erred in overruling the exceptions to the master’s report.
    Mr. Charles H. Wood, for the defendants in error.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought in the circuit court of Iroquois county, by William Hollingsworth, against Orange W. Koon, and others claiming to have an interest in the subject matter of the litigation. It appears from the allegations of the bill, that complainant and the principal defendant had had dealings with each other for a number- of years, commencing as early as 1868, and continuing down to or nearly to the time when the notes in controversy were given. During that time complainant received money from defendant as loans, for which, it is alleged, he agreed to and did pay to defendant interest at the rate of two per cent per month, which usurious interest, so reserved, was most generally put in the body of the notes, and thereafter treated as principal. The transactions between the parties were quite numerous. From time to time complainant would receive money from defendant, .and in turn would make payments to him. In that way their transactions with each other continued until about the 20th day of June, 1884, when defendant made an estimate of what he claimed complainant owed him, and, according to his calculations, the sum due at that time was $11,333.52, for which sum complainant gave defendant his promissory note. It is charged in the bill that that entire sum was made up of usurious interest, computed at the rate of two per cent per month. A controversy had arisen between the parties, and it is alleged in the bill that defendant, and others in his interest, threatened to put complainant in bankruptcy, and in that way sacrifice his property, unless he would give new notes for the alleged indebtedness, and secure the same by mortgages. Accordingly, on the 23d day of November, 1876, complainant executed to defendant Orange W. Koon, six promissory notes for the alleged indebtedness, amounting in the aggregate to the sum of $12,920.50,— the first four notes payable, respectively, in two, three, five and six years, and the two last notes payable, respectively, in seven years from date, with interest at the rate of ten per cent per annum, interest payable annually. Five of these notes, aggregating the sum of $10,920.50, were secured by mortgage on lands then owned by complainant, and the remaining note for $2000, payable in seven years from date, was secured by another mortgage on other lands owned hy complainant. Both of these mortgages contained the usual power of sale. The larger one contained the provision that in case of a failure to pay any note when the same should become due, or any interest that might become due, the whole debt secured should become due and payable. The notes described in the larger mortgage, together with the mortgage itself, were assigned by defendant to B. H. Durham, but it is charged that Durham is not in fact the owner of the five notes assigned to him, but is combining with defendant to defraud complainant.

Complainant charges that the whole amount received by him from defendant, in money and cattle, during the time qf their transactions, was $17,459.81; that he has paid him during the years he was receiving money from him, the sum of $21,792, and that Durham, as assignee of the five notes, claims from him the further sum of $12,216.97; that defendant Koon, on the other note, claims from him $2250, and that Buss claims from him on another note, which it is charged defendant ought to have surrendered to complainant when the notes in litigation were executed but wrongfully retained and since assigned to Buss, the sum of about $4200, making a total sum still claimed to be due from complainant of $18,666.97. The mortgages given to secure the indebtedness still claimed to be due, cover about five hundred and seventy-four acres of land, which are alleged to be of the value of $23,000. The allegation is, that the sum claimed to be due consists wholly.of usurious interest, fraudulently calculated and compounded by defendant, on the sum of $17,459.81, so loaned to complainant in money and cattle, and that defendant has long since received every dollar to which he is entitled. It appears, also, that Durham, as assignee of the five notes of $10,920.50, and the mortgage by which they are secured, on account of am alleged default in its condition, had advertised the lands embraced in the mortgage for sale, to pay the whole indebtedness secured. This bill was then filed. The relief asked is two-fold: First, for an injunction to restrain the sale of the land under the power of sale contained in the larger mortgage; and second, that an account might be taken, and for general relief. It'does not appear, though asked for in the bill, that any injunction was granted, and the sale of the premises described in the larger mortgage took place as advertised by Durham, and the mortgaged lands were bought at such sale by William B. Koon, a brother of defendant, for the sum of $5000, and to whom the assignee made a deed. A supplemental or amended bill was filed, in which complainant asked the same relief as in his original bill, and set up the fact of the subsequent sale of the mortgaged land to William B. Koon, and made him a party to the bill. It is alleged in the amended bill the sale made to William B. Koon was a sham, that no money was paid therefor, and that the lands were in fact bid in for defendant Orange W. Koon.

The defence set up in the original answer filed by defendant was, that on the 23d day of November, 1876, the matters in difference between complainant and defendant Orange W. Koon, were submitted to arbitrators,—one selected by each party,—and that as a result of that arbitration there was found to be due from complainant, to Orange W. Koon, the sum of $12,920.50. That is the precise sum for which the notes were given, on that day. Complainant denied that he had ever agreed to submit the matters in dispute between himself and defendant Orange W. Koon to arbitration, and the circuit court, on the first hearing of the cause, found there had been no award that was obligatory on the parties, and then proceeded to hear and determine the cause on its merits, without a reference to a master to state an account. On that hearing, it seems that the circuit court found complainant was not indebted on the notes in litigation, to defendants, or either of them, and granted relief substantially as prayed for in the bill. The cause was afterwards brought to this court by defendants, perhaps on their appeal. This court then held the circuit court decided correctly in holding the parties were not concluded by the award, as set up in the answer of defendants. But the decree was reversed for another cause. It appeared the accounts between the parties were complicated, consisting, as they did, of many items, and running through a series of years, and that it would, for that ■reason, be a very difficult task to undertake to determine how the merits of the controversy stood, without a reference to a master to state the account. It was ruled thát when the court determined the arbitration was not binding and'conclusive between the parties, then a reference of the cause ought to have been made to the master to state an account, under such directions embodied in the decree as might have been thought proper. The decree was therefore reversed, and the cause remanded, with directions to the court to refer the cause to the master.

On the mandate from this court being filed, the circuit court referred the cause to the master, as was directed should be done, under an interlocutory decree, in which it was recited: “This cause coming on to be heard on original bill, and amendment thereto, and the supplemental bill and answer, and replication thereto, and depositions, documentary, and oral testimony, and the court being satisfied that the matters, dealings and transactions between Hollingsworth and O. W. Koon were not submitted to arbitration, and "at no time had there been a settlement between them; that large sums of usury entered into the notes, and that the sale of lands mentioned in the original and supplemental bills were prematurely and inequitably made, and that William B. Koon had sufficient notice of the fact. ” It was then decreed that the sale to William B. Koon be set aside and declared void. The court directed the master to consider all the testimony and matters of evidence then on file in the cause, and such additional testimony as should be produced on the part of the respective parties, touching the state of accounts between them, and that in computing interest, to allow defendant Orange W. Koon six per cent per annum.

By his amended report the master found there was due from complainant the sum of $11,182,731 Quite a number of exceptions were filed by complainant to the amended report made by the master, all of which were formally overruled, except the fourth one of the series. That, the decree recites, was sustained. In all other respects the report of the master was confirmed. Complainant moved to refer the cause back to the master, .but that motion was overruled. Leave was then asked to file additional exceptions to the master’s report, and that, motion was. also denied. The c.ourt, by its final decree, deducted the sum of $1000, with interest from November 16, 1871, from the amount reported by the master, which left a balance due from complainant of $9547.73, on June 2.1, 1882, the date of the report. The court then ordered that complainant should, within three months, pay the sum so found due, with legal interest, to the clerk of the court, for the benefit of such of defendants as should appear to be entitled to it, and costs, and on such payment being made, it was further ordered that William B. Koon reconvey to complainant the mortgaged premises conveyed to him by Durham, and further, that on s,uch payment being made, Orange W. Koon should release and satisfy the other mortgage made to him on the 23d day of November, 1876, and that defendants shall deliver to complainant all deeds, mortgages and writings in their custody or power, relating to the mortgaged premises. Then follows a portion of the decree that is so obscure its meaning is not understood. The decree concludes: “But in default of complainant paying unto defendants the said amount, interest and costs, as aforesaid, found to be due at the time above mentioned, it is ordered, adjudged and decreed that the complainant’s original amended and supplemental bills from henceforth stand dismissed out of this court, with costs.” Exceptions to the decree of the court were taken, and the evidence heard in the cause was preserved in the usual certificate made by the judge of the court. Afterwards complainant removed the case to the Appellate Court for the Second District, where it -ivas dismissed by that court, for want of jurisdiction to hear and determine it. That judgment was afterwards reversed in this court, and the cause remanded to the Appellate Court, Avith directions to hear the cause on its merits. After the mandate from this court was sent down, the Appellate Court affirmed the judgment of the circuit court, and complainant brings the ease to this court on error.

There are some errors appearing on the face of the decree that will require a reversal, that justice may be done. One is, that the present decree is for too large a sum, under the obvious findings of the court. It will be noticed the court sustained the fourth exception to the master’s report. No cross-errors have been assigned by defendants as to that finding, and it must be understood that decision is acquiesced in, and must stand. It follows, therefore, the court should have deducted from the amount reported by the master the sum of $1699.90, Avith interest from the 2d day of October, 1871. That was not done, and the decree is clearly excessive to that amount, no matter Avhat conclusions may be reached as to other exceptions taken to the master’s report. But aside from this view, the preponderance of the evidence is, the item of October 2, 1871, of $1699.30, was not received by complainant, and he should not have been charged Avith it, and the master’s report should have been corrected in that respect. The court, however, did deduct from the total amount reported by the master to be due, the sum of $1000, with interest from the 16th day of November, 1871. That is the item mentioned in the third exception, and has no sort of connection with the item mentioned in the fourth exception, which, by the decision of the court, was sustained. As defendants have filed no cross-errors to this action of the court, it must stand, so far as the present decree is concerned. Had the defendants been dissatisfied with the decree' of the court in that respect, they would have challenged its correctness in this court in some appropriate mode. As the court did what complainant desired to have done, no argument need be made in support of its action.

It will be remembered, the bill was filed to restrain the sale of the land embraced in two mortgages until an account could be taken as to the amount due from the mortgagor. The court ascertained a total sum was due, but made no apportionment of this amount, so that the lands embraced in the separate mortgages should bear their just proportion of the burden of the indebtedness. That was error, to the prejudice of complainant. In that respect the whole lands were made security for both debts, to which they had not been pledged by complainant, and the court had no rightful authority to do it for him. It might be he could redeem from one mortgage, but not from both, and in that way save some of his property. At least he should have been afforded that opportunity. Complainant excepted to the decree rendered against him, and that was sufficient to raise this objection. Where an error occurs in the progress of a trial, the usual practice requires specific objections to be made; but when the court has taken time to consider, and pronounéed its final decree, and the trial is at an end, all the party against whom the decree is rendered can properly do, is to respectfully except, and save such exception in the usual mode. After the final decree is pronounced, nothing more need be done.

But there is still a graver error appearing on the face of the decree itself. The court found a certain amount was due, and decreed, as a condition to relief, that complainant should pay that sum, with interest and costs, to the clerk of the court, for the benefit of such of defendants as should appear to be entitled to it, within three months from the date of the decree, and then added: “But in default of the complainant paying unto said defendants the said amount, interest and costs, as aforesaid, found to be due at the time above mentioned, it is ordered, adjudged and decreed that the complainant’s original, amended and supplemental bills from thenceforth stand dismissed out of this court, with costs to be taxed. ” The decree in this respect might become oppressive in the extreme. Should complainant be unable to pay the whole amount the court directed should be paid to redeem both mortgages, within the short time limited, the result would be he would lose all his lands embraced in both mortgages, one of which had1 never been foreclosed, or attempted to be foreclosed, in any manner, for less than one-half of their value, and still a very large portion of the indebtedness claimed would remain unpaid, for which complainant would be personally liable. The decision of the court dismissing complainant’s bill without any saving of rights thereunder, would be res judicata as to all matters therein litigated, and would bar any further defence on the part of complainant to the collection of the whole indebtedness claimed by Orange W. Koon and his assignees, consisting, as it does, to some extent, at least, of unconscionable and corrupt usurious interest, and that, too, after the lands in the larger mortgage have forever passed from him, under the power of sale, for one-fourth of their value. A decree that might have this effect ought not to be permitted to stand. What the court ought to have done, after ascertaining the true amount of indebtedness of complainant to defendants, would have been to have apportioned it ratably upon the lands embraced in each mortgage, and directed a sale of the same, with the usual statutory redemption, and out of the proceeds to have ordered the payment of the sums found to be due on each one. That is the only equitable decree that could have been rendered, and in no other way could full justice be done.

As the present decree must be reversed for other reasons, the question made as to the action of the court in awarding all costs against complainant, need not be considered as a ground for reversing the present decree. Under a statute of this State, costs in chancery causes, except where complainant dismisses his own bill, or where the defendant has the bill dismissed for want of prosecution, rest in the discretion of the court. It must, however, be a sound legal discretion, and should never be so exercised as to do manifest injustice. In the present case this bill was not originally a bill to redeem, where costs are most usually imposed as a condition precedent to relief, in addition to the amount necessary to be paid to redeem. There had then been no sale of the property under either mortgage when this bill was filed. It was brought to restrain the threatened sale of the property until the true amount of the indebtedness could be ascertained by the court. It is true, the assignee, after the filing of the bill, did sell the / lands embraced in one of the mortgages, but as to that sale the court found it had been “prematurely and inequitably made.” The court found there was in fact much less due to defendants than they claimed to be due them on the face of the notes, and in the exercise of a sound legal discretion the court should at least have required each party to pay his own costs.

Exceptions were taken to the decision of the court overruling all objections taken to the master’s report, except three and four of the series. No analysis of the testimony bearing on each exception will be now made, and as to some of them no opinion will be expressed, further than to say, the testimony has been examined, and this court is not entirely satisfied with the decision of the court touching many of them, and that the testimony as to the items to which the objections are taken should be again carefully examined, both by the master and the court to which' the'cause shall be submitted, to the end exact justice may be done both parties. Especially, attention is directed- to the items of interest claimed to have been paid by Orange W. Koon to Ogden & Scudder, on account of interest due froni complainant. This court is inclined to the opinion the exceptions as to the allowance of the several sums -for interest paid to Ogden & Scudder,' should have been sustained. The weight of the evideneb'-seems to be, the money with which the interest was paid was either furnished by complainant to Koon, with which to procure the drafts, or -the- money in ¿very instance was repaid to Koon shortly afterwards, and as to such payments complainant should not be charged.

Without undertaking to tabulate any statement of the accounts between the parties, it is apparent the report of the amount found due by the master* may not be accurate. The evidence tends most strongly to show that up to March 21, 1872, all the money received from defendant Orange W. Koon was $10,524.93. Complainant states the dates and amounts, when received, that go to make up that aggregate sum. Defendant Orange W. Koon admits in his testimony, that on the former hearing of the cause he testified that all that complainant owed him prior to March 21, 1872, was $10,524.93. To the testimony as first given, he-now makes some explanation as to what he meant by that statement, but from all the test!-' mony it may be fairly assumed that- that sum represents all the money complainant had received from defendant up to that date. Complainant admits that in 1873, at three several times, he received certain other sums of money from Koon,— in the aggregate, $6493,—for which several sums he agreed to pay interest at the rate of two per cent per month, wdiich was put in the notes given. During the year 1874 he denies_ receiving any money from defendant, but admits he received some cattle, but of no very great value. Adding the sums prior to March 21, 1872, and since,-together, it will make a total sum of $17,017.98, besides the cattle received in 1874. Since then the master found complainant has paid defendant nearly $17,500, but complainant claims he has paid a larger sum. It will be noticed, on inspection of the master’s report, the aggregate sum-he finds defendant Koon let complainant have since March 21, 1872, after excluding the several sums claimed to have been advanced for interest to Ogden & Scud* der, as should be done, does not differ very materially from the amounts admitted by complainant. It may be assumed, then, as approximately correct, that all complainant ever'received from Koon in money did not much exceed $17,017.93, but to which amount must be added the value of cattle received in 1874, which is not a very large sum. Since then, and during the time he was obtaining the loans from defendant, he has paid him in money nearly $17,500. To this sum must be added the Kuss decree, obtained on a note given to Orange W. Koon for part of the total sum borrowed of him, and which ought to have been surrendered when the last notes were given, and which he afterwards sold to Kuss, amounting; with the interest at the date of the decree, to about $4200. It makes a total sum paid to defendants of $21,700, on a sum of less than $18,000 borrowed of him. And yet defendant Orange W. Koon, and his assignee, hold notes given for the same indebtedness, and none other, of $12,920.50, with interest at ten per cent per annum, since November 23, 1876. If these notes should now have to be paid, the sum would be quite large; but if only the amount of the decree ($9747.73,) should be regarded .'as the sum due on the notes, that sum, with the interest since the date of the decree, would be no inconsiderable amount, and to which must, also, be added the amount of the Kuss decree. Adding the amount of the present decree to the sums already paid to defendants, it would make a total amount of $31,000 on a sum borrowed of less than $18,000, of which sum over $17,000 was paid during the years the loans were- being made. Assuming, then, these figures may be approximately correct, they show there must be some error somewhere in the report of the master, and that the account, should be stated with more care.

The judgment of the Appellate Court will be reversed, and the cause remanded to the circuit court. ,

Judgment reversed.

Mr. Justice Sheldon,

dissenting:

There was a reference to the master to take an account of what was due on the mortgages, with direction to the master to only allow Koon interest at the rate of six per cent per annum. The master took the account. On exceptions filed before him, some changes -were made by him, and he reformed the account. To the reformed account exceptions were filed and-overruled.-- -The master’s report stating .the account as reformed by him, was filed in the circuit court, and that court passed upon the exceptions to the reformed account, and sustained the master’s report,- except as to one item. The master reported to be due on the notes and mortgages, $11,182.73. After deducting therefrom the item as to which the court sustained an exception, being a credit of $1000, with interest thereon, in favor of complainant, the court found there remained due from complainant the sum of $9547.73, upon which sum, with interest, being paid within three months, it was decreed the mortgages should be released, and in default thereof the bills should stand dismissed, and that complainant pay the costs of the cause. By the decretal,order, it was “ordered that the fourth exception of said complainant to said amended report be sustained, and that complainant be allowed the credit of $1000, as of the date of November 16, 1871, and which the said master refused so to allow; and it is further ordered, that in all other respects the amended report of said master,-of date June 21, 1882, be confirmed, and all the other exceptions of said complainant thereto be overruled, and the court finds that by deducting the said item of $1000, with interest thereon from November 16, 1871, from the sum of $11,182.73, the amount found to be due by said master in his amended report, there remained the sum of $9547.73 due from complainant, June 21, 1882, the date of said report. ” The third and fourth exceptions are as follows:

“Third—Said master should allow a credit to Hollingsworth, of November 16, 1871, $1000, which he has not-done.
“Fourth—There should not be allowed both the items of September 13, 1871, $1000, and the item of October 2,1871, $1699.30, but only $1600, as this was all the item ever paid Hollingsworth about that time, and the allowance of the other, and interest, is erroneous. ’’ ■

It is claimed that it appears by the above that both the third and fourth exceptions were sustained by the court, and that there is a manifest error in not deducting, the item of the fourth exception, $1699.30, from the amount afterward declared as being due. It appears sufficiently that there was here a clerical error, which corrects itself, in miscalling the exception which was sustained, the fourth instead of the third. It is quite plain from an inspection of the above portion of the decree, in connection with the third and fourth exceptions, that there was but one exception sustained, and that was the third; that there was but one item of exception to be deducted, which was $1000, and that was the subject of the third, and not of the fourth, exception.

Plaintiff assigns as error the rulings of the court in not sustaining a large number of exceptions to the master’s report, all going to particular items of debit and credit in the account. An examination of the evidence will show that there is testimony to sustain all the findings of the master which are excepted to, and those of the court, and that it is a question only as to the credibility of witnesses which is presented in this regard,—that the master has given credence to one witness rather than to another. After considering the conflicting testimony of witnesses, and the circumstances relied on as being in corroboration or otherwise, there is no such error appearing in any of the findings of the master, or of the court, as in my judgment to. call for a reversal of the decree.

As to the objection that the amount found due was an entire debt, and not apportioned on each of the mortgages, it would seem to be too late for plaintiff in error to raise this objection for the first time in this court. He made no such objection before the master, or before the circuit court. Had he done so, the amount found due would doubtless have been apportioned to the two mortgages. But the master was allowed to proceed and find what was the entire debt-due upon -the two mortgages, and not the amount due on each mortgage separately, without any intimation of dissent thereto, or any expression of desire that there should be a contrary course, finding the amounts due on the mortgages separately. And it was the same throughout the proceeding in the circuit court. It does not seem fair, after thus lying by and apparently acquiescing in the master’s mode of computing the indebtedness, to now for the first -time, in this court, raise this objection. It should be deemed to have been waived. ■

• The matter of costs objected to, was in. the discretion of the circuit court, and as a general rule a party coming into a court of equity to redeem, pays costs to the defendant, in addition to the amount due upon the mortgage, although he obtains the relief prayed for. (2 Barbour’s Ch. Pi\ 199.) The supplemental bill prays that if anything is -found to be due from the complainant, he be allowed to pay it. The bill is to be regarded as one to redeem.

I perceive no error in the decree, and am of opinion it should be affirmed.

Mr. Justice Craig : I fully concur in the dissenting opin7 ion of Justice Sheldon.


author: Mr. Chief Justice Mulkey

text:
    John A. Lomax v. George A. Gindele.

      Filed at Ottawa May 15, 1886.

    1. Redemption from tax sale—as between tenants in common. Where one tenant in common of land exercises the right given him .by law to redeem the entire premises from a sale for taxes, such redemption will inure to the benefit, also, of his co-tenant, upon the condition that he or those claiming under him will pay the one redeeming, one-half of the cost of the redemption.
    2. So where one of two tenants in common of a tract of land which had been sold for taxes, instead of redeeming directly from the sale, made an agreement with the holder of the certificate of purchase that the latter, should take out a tax deed thereon and then convey the premises to the former, which was done, it was held, that the transaction amounted to but a redemption for the benefit of both tenants in common, and that a court of equity would compel the one taking a conveyance of the tax title, to convey to the other one undivided half of the tax title upon payment of half the cost thereof.
    3. Practice in Supreme Court—modifying decree. This court may, on affirmance, so modify a decree appealed from, as to obviate the necessity of determining definitely whether it is technically correct as rendered, and thereby remedy an objection urged to its form.
    Appeal from the Circuit Court of Du Page county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Elbert H. Gary, for the appellant:
    Ordinarily, when taxes are assessed and payable as an entirety, and can not be divided, a purchase by a tenant in common, at a tax sale, of the whole of the premises, inures to the joint benefit of all-the'owners. Chickering v. Faile, 38 Ill. 342; McConnel v. Konepel, 46 id. 519; Busch v. Huston, 75 id. 343; Bracken v. Cooper, SO id. 221. But see Lewis v. Ward, 99 Ill. 525, and Hinckley v. Greene, 52 id. 223.
    Appellant was under no legal or moral obligation to pay the taxes in question when he acquired his tax title, and hence was not precluded from acquiring such title. Blackwood v. Van Vliet, 30 Mich. 121; Coxe v. Gibson, 27 Pa. St. 160; Blackwell on Tax Titles, 470; Moss v. Spear, 25 Cal. 45; Bowman v. Cockrell, 6 Kan. 332; Blakely v. Bester, 13 Ill. 714; Glancy v. Elliott, 14 id. 458; Seaver v. Cobb, 98 id. 203; Cooley on Taxation, 348.
    The decisions pertaining to the .attempted acquisition of a tax title by a tenant in common, have no application to this case, owing to the change made by our statute, which gives a tenant in common a right to pay taxes on his undivided interest.
    The decree is erroneous in directing the appellant to execute to appellee a quitclaim deed of an undivided half interest in the premises, or in default thereof, that the master in chancery execute such deed.
    Mr. Ellis S. Chesbbough, Jr., for the appellee:
    The decree in this case is founded upon the principle of law that a tenant in common, having bought an adverse title, can not use it adversely to his co-tenant, but the latter has an option to regard the purchase as made for their joint benefit, and share alike in the expense and benefit. This doctrine is founded in reason, is most equitable, and rests on an unbroken line of decisions, in cases both in chancery and common law courts. In this State the doctrine has been affirmed repeatedly, and the law on the subject was crystallized in the case of Bracken v. Cooper.,- 80 111. 221.
    Appellant argues that this doctrine, as regards tax titles, only applies “where taxes are assessed and payable as an entirety, and can not be divided. ” „ But his authorities do not sustain his position. Bracken v. Cooper, 80 111. 229.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 25th of April, 1870, John Atkinson, being the owner of the land involved in this litigation, conveyed, by quitclaim deed, an undivided half thereof, to Edwin Walker. On the 20th of June, 1881, Lewis Ellsworth, Jr., purchased the entire tract at a tax sale. On the 20th of October, 1882, John H. Lomax, at an execution sale by the United States marshal for the Northern District of Illinois, purchased Walker’s interest in the premises, for which he subsequently, on the 23d of January, 1884, received a marshal’s deed. On the 21st of June, 1883, the county clerk executed to Ellsworth, Jr., a tax deed, who, on the same day, quitclaimed his interest in the premises to Lomax. Atkinson, on the 26th of June, 1884, conveyed, by warranty deed, his undivided half in the premises to A. E. Guild, Jr., who, on the 30th of January, 1885, conveyed the same to appellee, George A. Gindele. It also appears that, for the consideration of about $15, paid by appellant to Ells-worth, the two, some time before the time for redeeming the premises from the tax sale had expired, entered into a contract, by the terms of which the latter was to be permitted to take out a tax deed, as though no redemption had taken place, and then convey the premises to appellant, which agreement, as already seen, was fully performed. This transaction, in legal effect, amounted simply to a redemption of the premises from the tax sale. Under this state of facts the appellee filed the present bill against Lomax, asking to redeem from said tax sale upon payment by him of his share of the redemption money, and also to compel Lomax to quitclaim to complainant one undivided half of the land. There was a decree in accordance with the prayer of the bill, and the present appeal is from that decree.

The form of the decree may be objectionable, yet we have no doubt that appellee is entitled to the relief intended to be granted, namely, the establishment of his right to an undivided half of the land, unaffected by the tax sale, and all conveyances made in pursuance thereof or which are dependent thereon. By Lomax’s purchase at the marshal’s sale, he became the owner of Walker’s undivided half of the land, subject to the right of redemption from the marshal’s sale, through which he claimed. By reason of his purchase, the law conferred on him, as tenant in common with Atkinson, the right to redeem the entire premises from the maturing tax title,—the time of redemption having yet some eight months to run; yet the same law which conferred upon him this right to redeem Atkinson’s interest, as well as his own, annexed to it the qualification that the redemption, when so made, should inure to the benefit of Atkinson also, on condition that he, or those claiming through him, would pay to Lomax one-half of the cost of redemption. The money thus advanced for Atkinson in making the redemption became an incumbrance or charge upon his interest in the land in favor of Lomax, which appellee, as a purchaser from Atkinson’s grantee, has a clear and undoubted right to pay off and discharge.

As the view here taken is fully sustained by the previous decisions of- this court, further discussion of the subject is deemed unnecessary. C bickering v. Faile, 38 111. 342; Mc-Connel v. Konepel, 46 id. 519; Busch v. Huston, 75 id. 343; Brackens. Cooper, 80 id. 221; Lewis v. Ward, 99 id. 525; Hinkley v. Greene, 52 id. 223.

Assuming the law to be as stated, what we have already said is a sufficient answer to all the points raised in appellant’s argument, except the last, which goes rather to the form than the substance of the decree. The point, as. stated by counsel, is thus made: “If the court should hold the act of appellant in acquiring a tax title to the premises amounts simply to a payment of the taxes, and that appellee is entitled to redeem, then, of course, appellant has no title to the property in question, except the title to an undivided half, which he acquired by virtue of the marshal’s sale and deed, and this title, the court decrees, must be conveyed to appellee.”

The court below doubtless proceeded upon the theory that inasmuch as the tax proceeding appears to have been regular, and no improper conduct or bad faith is imputed to any of the officers of the law connected with it, the tax deed of the county clerk had the effect to pass the legal title to Ellsworth, but that by reason of the fraud which appellant was attempting to practice upon Atkinson, to which Ellsworth himself was a party, the law raised a constructive trust in Atkinson’s favor, to the extent of his interest in the land. Assuming such a trust to have been raised, it could only be upon the theory that the acquiring of the title in the manner stated was, as to Atkinson and those claiming under him, to be treated, in equity, as a redemption, merely, from the tax sale.

Taking this view of the matter, there was certainly no inconsistency in directing a conveyance to appellee of one undivided half of the land, as is done by the decree, and if the theory suggested is the correct one, the decree was entirely proper. Certainly, precedents are not wanting where similar decrees have been rendered in cases much like the present. As the objection, however, may be removed altogether by a slight change of the language of the decree, it will be so modified in this court, which will obviate the necessity of determining definitely whether the decree, as rendered, is technically correct or not. An order will, therefore, be entered in this court, so modifying the decree of the court below as to require appellant to convey and quitclaim to appellee one undivided half of any and all interest he may have acquired to the land in question through said tax deed and the conveyance from Ellsworth to himself. .

With this modification, the decree is affirmed.

Decree affirmed.


author: Mr. Justice Shops

text:
    Stanley W. Dexter et al. v. Lambert Tree et al.

      Filed at Ottawa March 27, 1886.

    1. Alley—right of abutting owner to its use—and as to being public or private. If an alley is a public one, a party whose buildings adjoin the same will have a right to its use for light and ventilation, as well as for all other lawful purposes; but if it is not public, the fact that it has remained a long time uninclosed, and such party has built his house with windows and doors opening upon it, and enjoyed the benefit of light and ventilation from it, will confer no right upon him to have it kept open.
    2. Dedication—in respect to an alley—in assessor’s plat. Where an assessor’s plat of land, made for purposes of taxation, shows a strip seven feet wide, marked, “alley, see book 15, page 228, ” and the reference shows it to be a private alley, created for the sole use of the parties then owning adjacent property, the sale and conveyance of lots by the numbers and description, as shown by such plat, will not amount to a dedication of such strip as a public alley. Nor will the making of such conveyances affect the rights of persons to such alley who are not parties thereto.
    3. Prescriptive right—the basis thereof—as to the use of an alley. Every species of prescription by which property is acquired or lost, is founded upon the presumption that he who has had quiet and uninterrupted possession of anything for many years, has a just right, without which he would not have been permitted to continue its enjoyment. It must originate under a claim of right, and not under mere permission.
    4. The use of a private alley of another by mere permission, without any claim of right to such use, which is not inconsistent with its use by the owners thereof, is not of such adverse character as will form the basis for a prescriptive right.
    5. .Where there is nothing to show that the use of an alley was under a claim of right, or with the intention to enjoy it without regard to the wishes of the owners of the land, or that it was established and maintained for the benefit of the party using the same, but, on the contrary, it appears it tvas established for the private use of others, no prescriptive right can be claimed in such alley.
    Writ of Error to the Appellate Court for the First District';—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      Mr. Edward J. Judd, and Mr. A. M. Pence, for the plaintiffs in error:
    The plaintiffs in error have, by grant, acquired a right to use the alley for all purposes for which one may be used. The mere fact of conveying to plaintiffs in error according to the assessor’s plat of 1866, on which an alley is shown north of said lot 5, incorporates said plat into the deed, and is sufficient to convey an easement in such alley. Wiggins v. McCleary, 49 N. Y. 346; Cox v. James, 45 id. 557; Tallmadge v. East River Bank, 26 id. 105.
    The existence of an apparent alley, as shown by the position of the surrounding houses, the use of the same by occupants of the lot in question, and the acts of both plaintiffs and defendants in error in conveying by the plat showing the same, and other surrounding circumstances, are sufficient to show the intention of the parties, and to convey an easement, by implication, under the word appurtenances used in the conveyances. Ingalls v. Plamondon, 75 Ill. 118; United, States v. Appleton, 1 Sumn. 500; Parker v. Nightingale, 6 Allen, 341; Dunklee v. Railroad Co. 4 Foster, 489; Seymour v. Lewis, 13 N. J. Eq. 439; Seibert v. Sevan, 8 Pa. St. 383; Story v. Odin, 12 Mass. 159; Kent v. Waite, 10 Pick. 140.
    The plaintiffs in error are entitled to an easement in said alley by prescription, as the same has been used as such for almost forty years. Haight v. Proprietors, etc. 4 Washb. C. C. 601; United States v. Appleton, 1 Sumn. 500.
    Messrs. Dent, Black & Cratty Bros., for the defendants in error:
    The distinction between a private right of way and one that is public in common, is a striking one; the former belonging only to the particular parties by whom it has been acquired, while the latter is for the free use of every member of the community. Angelí on Highways, sec. 2.

      The seven-foot strip was intended by the agreement made in respect thereto, for private use by the parties and privies therein designated, and could not, by any length of use by others in harmony with the agreement, as recorded, be said to be a public way. Hall v. McLeod, 2 Metc. 98; City v. Jones, 76 Ill. 232.
    Here, the owners of the soil of the seven-foot strip retained all the rights and benefits of ownership consistent with the burden thereon, or easement therein, for which they stipulated as between themselves, their heirs, assigns and legal representatives. Washburn on Basements, (2d ed.) 244.
    This agreement was limited to'the parties concerned in the parcels covered thereby. Evans v. Dana, 7 R. I. 306; Allen v. Gomme, 11 Ad. & Ell. 759; Washburn on Easements, 227, 228, 239, 240.
    The right of passage, or other burdens, can not be enlarged or extended by any of the parties thereto, to accommodate other adjoining closes. Davenport v. Lamson, 20 Pick. 72; French v. Martin, 32 N. H. 316.
    Magie & High’s rights could not be disturbed by the acquisition of Boyce of the property on the south, not named in the agreement. Nor could Boyce acquire any additional right by a mere permissive use of the seven feet, for prospect or light, or even other use thereof, while it was left vacant under the agreement. City of Quincy v. Jones, 76 Ill. 231; Railroad Co. v. Hoag, 90 id. 340; Kilburn v. Adams, 7 Metc. 33; Commonwealth v. Fislce, 8 id. 245; Harper v. Parish of the Advent, 7 Allen, 478.
    The English doctrine of a prescriptive right to light and prospect is not in force in this State. Guest v. Reynolds, 68 Ill. 478.
    That doctrine is not applicable to this country, and user, even when connected with a claim of right, will not support it. Hayden v. Dutcher, 31 N. J. Eq. 217.

      All acts relied upon by plaintiffs in error to show user, were merely permissive, and not inconsistent with the agreement of April 7, 1845, and they can not be relied upon as giving any prescriptive right. Hall v. McLeod, 2 Metc. (Ky.) 98; City v. Johnson, 98 Ill. 618; City of Quincy v. Jones, 76 id. 232.
    The agreement having defined the rights of the parties, it is not to be controlled or contradicted by parol testimony. Washburn on Basements, (2d ed.) 225.
    The assessor’s plat was made for convenience of assessing the property, and could not affect the rights of the parties acquired before it was made.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill in chancery, filed in the circuit court of Cook county by the plaintiffs in error, to enjoin the defendants in error from obstructing a strip of ground seven feet wide and sixty feet long, which they claim defendants in error have no right to use except as an alley. The bill charges that plaintiffs in” error are the owners of property adjoining said strip of ground on the south, upon which is a building three stories high, with doors and windows opening upon said strip, which affords light and ventilation to said house; that defendants in error have built a wall on the south line of said strip of ground, and arched over said supposed alley, and closed up and obstructed several of the apertures in the building of plaintiffs in error. The prayer of the bill is, that the defendants pay such damages as plaintiffs have sustained in the premises; that they be enjoined from obstructing said alley, and from allowing the wall already erected to remain, and that they be compelled to remove the wall already erected, and for other relief, etc. Defendants in error, in their answer, claim that said strip of ground is a private alley belonging to them, and used by them as a private alley, for their mutual accommodation, under a written agreement, and deny that it was ever dedicated to the public or used'by the public as an alley, or that the plaintiffs in error, or any one else except defendants in error and those under whom they claim, ever acquired any easement therein.

The facts shown by the evidence are, that about April 7, 1845, one Leroy S. Boyce was the owner of sub-lots 3, 4, and north ten feet of lot 5, all being a part of lot 4, in block 34, in the original town of Chicago. Lot 3 had a frontage of twenty feet on Lake street, and sixty-five feet on La Salle street. Lot 4 adjoined lot 3 on the south, having a frontage of twenty-five feet on La Salle street, by sixty feet in depth from west to east. Lot 5 adjoined lot 4 on the south, with a frontage on La Salle street, and of same depth as lot 4. Thus it appears that Boyce owned twenty feet by one hundred feet on the corner of Lake and La Salle streets, the frontage on Lake street being twenty feet, and on La Salle street one hundred feet. On April 7, 1845, said Boyce conveyed to Haines H. Magie and John High, Jr., by metes and bounds, sub-lots 1, 3, 4, and north ten feet of sub-lot 5, of said lot 4, block 34, and being forty feet on Lake street, running south one hundred feet to the south line of the north ten feet of sub-lot 5, of lot 4, in block 34, in the original town of Chicago. High and Magie already owned sub-lot 2 in said lot 4, and which was situated between said sub-lots 1 and 3, and north of sub-lot 4. On the same day, the said Boyce, High and Magie executed a contract in writing, which was duly acknowledged, and recorded in the recorder’s office of Cook county on the 23d day of June, 1845, in book 15, at page 228, whereby said Boyce agreed a passage :six feet wide on La Salle street, and to be arched over, (the height of arch being left blank,) and extending east twenty feet from La Salle street, shall be and remain open and unobstructed as an alley, for the sole and exclusive use of the parties, (to such contract,) their heirs and legal representatives, it being understood that one foot by twenty of the extreme south end of said lot on La Salle street is reserved for building a wall, so that an arch may be constructed over said alley; and said Magie and High, on their part, agreed with said Boyce that seven feet by thirty-five, on the south end of the lot conveyed to them by said Boyce, should be and remain unobstructed, to be used as an alley for the like sole and exclusive use of the said parties, their heirs, assigns and legal representatives. They further agreed that said Boyce might use five feet square in the south-east corner of their said lot for privies. Up to this time said Boyce owned no land south of this alley. In December, 1845, Boyce became the owner of the ground adjoining this alley on the south, and the plaintiffs in error are now the owners of the title then acquired by him, and the defendants in error are the owners of the property owned by Boyce, High and Magie on the 7th of April, 1845. From April, A. D. 1845, up to 1866, the property, including this alley, was assessed as private property, by metes and bounds, and the taxes paid thereon. In that year the assessor made a plat of said land for the convenience of assessing, upon which plat the seven-foot alley is shown, and upon the space representing said alley on said plat are these words: “Alley, see book 15, page 228.” By this plat the ground north of said alley owned by defendants in error, is designated as lots 2, 3 and 4, in the assessor’s addition, and since the recording of said plat the property has been assessed, and taxes regularly paid thereon, by the description of lots 2, 3 and 4, in assessor’s addition. In some of the conveyances under which the defendants in error claim, the property is described according to the description in the assessor’s addition, but in such case the seven feet south and adjoining is included in express terms. Previous to the great fire of 1S71 there was a building on the land owned by plaintiffs in error, the north line of which was the south line of this alley, from which building there were doors and windows opening upon the alley. The public never used said alley, nor did the public authorities ever assume or exercise any control over it. The alley was used by those occupying the building next east of the corner of Lake and La Salle streets, for taking in freight from La Salle s.treet, and also by those on the corner for storing empty boxes, barrels, etc., until they could be disposed of. The only use made of the alley by those occupying the house on the south side, was to carry provisions into the kitchen in the rear of the house, and as a place to deposit refuse matter. The building on the' south side was destroyed by fire in A. D. 1871, and when plaintiffs in error were about to rebuild, they were notified by defendants in error not to put any openings on the north side, and if they did, defendants would build a wall and close them up, and their attention was expressly called to the agreement between Boyce, Magie and High, of April 7, 1845, and that defendants claimed that the alley was private property, but they claimed the right to put such doors and windows in, and did so. This was in 1878. In 1882, defendants in error built a five story building on their lots, that of Lambert Tree being the whole length of his lot, having a passage under the rear of said building six feet wide and one story high, being the seven feet in dispute, less one foot, upon which the south wall rests, that of defendant High extending south to the north line of said alley. Defendant in error High has also erected a wall on the south line of said seven feet, and said wall so erected by defendants in error completely closed up all of the openings on the north side of the house of plaintiffs in error. The circuit court, on hearing, dismissed the bill for want of equity. The Appellate Court affirmed the decree of the circuit court, and the ease is now here on a writ of error to that court, and reversal of its judgment asked.

The plaintiffs in error claim a right to the use of the ground in controversy for the purpose of light and ventilation. Of course, if the ground is a public alley, they are entitled to the use of it- for that as well as for all other, lawful purposes, but if it is not a public alley, then the mere fact that it has remained uninclosed, and that they have built a house with doors and windows opening upon it, and enjoyed the benefit of the light and ventilation which it offered so long as the owners chose to leave it open, confers no right upon them to have it kept open. The case of Guest v. Reynolds, 68 Ill. 478, is conclusive upon that point.

Plaintiffs in error insist that when the owners of the property now owned by defendants in error, after the recording of the assessor’s plat, conveyed and accepted conveyances describing the property according to that plat, they thereby ratified such plat, and the alley thereon designated became a public alley by dedication. Suppose that it be conceded that a conveyance made according to a recorded plat, ratifies the plat as correct, and that the grantee accepting such a conveyance would be estopped to deny the correctness of the plat, how would it affect this case ? The assessor’s plat, it is true, has a strip seven feet wide at the south end of the property owned by defendants in error, upon which are .these words: “Alley, see book 15, page 228.” This does not state whether this is a public alley or a private alley, but it refers every one to the book and page where the instrument creating it may be found, and when found, it appears that it is a private alley, for the sole and exclusive use of the parties then owning the property, now owned by the defendants in error, and that the party owning the corner lot reserved one foot on the extreme south side of said alley for the purpose of building a wall and constructing an arch over said alley,—the very thing the defendants in error who now own said property have done, and of which plaintiffs in error complain. It may be, if the conveyances through which the defendants in error claim, had simply described the lots by their numbers, as shown on the assessor’s plat, this strip would not have passed by such conveyances; but whether that be so or not, is not material, as the parties always added to the number of the lots in the description, “and seven feet south and adjoining, ” and the same description was followed by the different assessors, and taxes regularly paid by defendants in error and those under whom they claim. Of course, the making and accepting of deeds upon the property south of the alley by plaintiffs in error, and those under whom they claim, according to assessor’s plat, can not affect the rights of defendants in error, who are not parties to such conveyances. Nor' could the fact that Boyce, after making the agreement with Magie and High, acquired title to property south of the alley, change the rights of the parties, as fixed by this agreement, so as to extend the benefits of the alley to such after acquired property. We arp, therefore, of opinion that there is no dedication of this strip of ground for the purposes of a public alley shown, but that it has been used by the owners thereof as a private alley, in conformity to the agreement creating it, and that whatever use plaintiffs have made of it was made permissively.

Plaintiffs in error also claim that said alley is a public alley by prescription, or, at least, that they have such an easement in it by prescription as entitles them to the continued and unobstructed use of it. “Every species of prescription by which property is acquired or lost, is founded upon this presumption, that he who has had quiet and uninterrupted possession of anything for a long period of years, is supposed to have a just right, without which he would not have been suffered to continue in the enjoyment of it.” (2 Cruise’s Digest, title “Prescription,” chap. 1, sec. 34.) In Gentleman v. Soule, 32 Ill. 279, it was said, that to acquire an easement by travel over the land of another, “it must also be open, adverse, and under claim of right, ” and for the requisite period.

If the claim by prescription is based upon the use of air and ventilation, we have already-seen it is untenable, under Guest v. Reynolds, supra: What other use have the defendants, or those under whom they claim, made of said alley, which raises any presumption of a right so to use it ? There is nothing in the record tending to prove that the public ever used it at all, or made any claim to it. The only evidence we can find of any use made of it by plaintiffs in error, was to carry their provisions to the kitchen over this ground, and to empty the refuse matter from their table through the doors and windows opening upon it,—and all that was before the present building was erected. There is nothing tending to show that the plaintiffs did these acts under any claims of right, and so far as we can see, they were merely permissive, and in no way adverse to the rights of defendants in error, nor inconsistent with its use by defendants in error under the agreement between Boyce, Magie and High. In Hall v. McLeod, 2 Metc. (Ky.) 102, the court says: “It can not be admitted that where the proprietor of lands has a private passway through it for his own use, the mere permissive use of it by others for half a century would confer upon them any right to its enjoyment. So long as it is merely permissive it confers no right, but the proprietor can prohibit its use, or discontinue it altogether, at his pleasure.” To create the presumption of a grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that it was accompanied by a claim of right, or hy such acts as manifested an intention to enjoy it, without regard to the wishes of the owners of the land. The use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege, revocable at the pleasure of the owners of the soil. In City of Quincy v. Jones et al. 76 Ill. 231, this court said: “Moreover, it seems well settled that an adverse right to an easement can not grow out of a mere permissive enjoyment for any length of time. ”

We can not find in the evidence in this case any of the elements of a prescriptive right in plaintiffs in error to an easement in said land, except the slight use made thereof before mentioned, which was merely permissive, and entirely consistent with the rights of defendants in error under the agreement creating the alley. There is nothing to show that such use was under claim of right, or with the intention to enjoy it without regard to the wishes of the owners of the land, or that this alley .was established or maintained for the benefit of plaintiffs in error, but, on the contrary, it clearly appears that it was established for the sole and exclusive use of the owners of the land on the north of it.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    George H. Fergus et al. V. Seth Wilmarth et al.

      Filed at Ottawa May 15, 1886.

    1. Deed oe trust to secure a debt—insurance money coming to the hands of the trustee—of its proper application. A trustee, in pursuance of a provision in the deed of trust, received insurance money for a loss by fire of the buildings on the mortgaged premises, in a case where the trust deed required the mortgagor to keep the property insured for the further security of the debt, which had not matured and become payable: Held, that the money so received took the place of the buildings destroyed, and was in the’ trustee’s hands a part of the security for the debt.
    2. In such case, the trustee is the agent of both the mortgagor and the holder of the mortgage debt, in respect to the money, and as the principal debt wras not due, and no default had been made in the payment of the interest, the trustee could not apply the fund to the reduction of the debt without the consent of the debtor. Nor could he pay over the same to the mortgagor on his mere promise to expend the same in replacing the buildings destroyed.
    3. Same—in case of a loss of the insurance money after coming to the hands of the trustee—rights of the parties. A# mortgagor insured the buildings on the premises in the name of the trustee, as a further security for the debt. Before the mortgage debt became due, a loss by fire occurred, and the insurance company paid the insurance money to the trustee, who retained the same, the mortgagor being unwilling to have it applied in reduction of the debt, and, on the request of the mortgagor, deposited the same in a bank of good credit and standing at the time, but which afterward failed. At no time did the trustee have the note or trust deed in his possession, and he did not receive the money as the agent of the creditor: Held, on bill to foreclose the deed of trust, that the mortgagor was not entitled to have any part of the insurance money, so received by the trustee, and afterwards lost by the failure of the bank, applied as a payment on the mortgage debt.
    Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. E. B; Bacon, for the plaintiffs in error:
    The provisions of the trust deed constitute the contract between the parties, as to the kind and amount of insurance that was to be furnished. The powers and duties of the trustee in relation to said insurance, depend upon the terms and provisions of the deed of trust. 2 Perry on Trusts, 158, sec. 602. v
    The trust deed conferred no power upon the trustee to hold or control the disposition of the insurance money after its collection. The proceeds of the insurance represented a part of the mortgaged property. Life Ins. Co. v. Scamnion, 4 Fed. Rep. 263; Gordon v. Savings Bank, 115 Mass. 588.
    The insurance was in the mortgagor’s interest. It was for indemnity to the mortgagor as well as to the mortgagee. It was collateral to the debt, and the mortgagee had no right, without the mortgagor’s consent, to convert the same until he had a right to demand" payment of the debt. Gordon v. Savings Bank, 115 Mass. 588; Jones on Mortgages, (2d ed.) sec. 410.
    If the mortgagee were informed by the trustee that he held the insurance money, after its collection, as a security for the mortgagee and for his benefit, and after demand therefor by the mortgagor for rebuilding purposes, and the mortgagee thereafter assented to such holding by said trustee, then, if such holding were wrongful, the mortgagee would be liable therefor. Barker v. Garvey, 83 Ill. 184; Story on Agency, sec. 255; Life Ins. Co. v. Scammon, 4 Fed. Rep. 263.
    Mr. E. A. Otis, for the defendant in error Seth Wilmarth:
    The indebtedness was not due at the time of the collection of the insurance money, and Furness had no power to collect and apply it on the indebtedness without the consent of both parties. Payment of the money to Furness, as trustee, was not a payment to Wilmarth. Furness had no authority from Wilmarth to accept payment of the indebtedness from Fergus, and if he had assumed to do so, and released the trust deed without actual payment of the money, the release could have been set aside. Keohane v. Smith, 97 Ill. 156.
    If Furness had paid the money to Fergus for the purpose of rebuilding, he would have become responsible to Wilmarth if the money had not been properly applied. Gordon v. Savings Bank, 115 Mass. 588.
    There is no liability on the part of Furness for the loss occasioned by the failure of the bank. He acted in good faith, and used all reasonable diligence, besides acting on the recommendation of Fergus. Gettius v. Scudder, 71 Ill. 86; Perry on Trusts, see. 443.
    Mr. George W. Smith, for the defendant in error Furness.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill to foreclose a trust deed, dated June 26,1871, executed by George H. Fergus and wife to William E. Furness, trustee, upon lot 3 in block 12 in Kinzie’s addition to Chicago, to secure a note of same date for $12,000, borrowed money, made by George H. Fergus, payable five years after date to order of Alexander H. Rice, agent, drawing interest at eight per cent per annum, payable half yearly, and indorsed over by Rice to Seth Wilmarth. The bill was taken as confessed by all the defendants, except Fergus and wife, who answered, admitting the execution of the note and trust deed, •but denying the existence of the full indebtedness claimed, and averring, that by the terms of said trust deed the said George H. Fergus was required to insure the buildings on said premises for $7500, and by the policy the loss, if any, was to be made payable to said trustee for the benefit of the holder of said notes; that prior to the fire of October, 1871, he had so insured said buildings for said sum, and had placed the said policy in the hands of said trustee; and the buildings were in said fire destroyed, and said trustee afteiwvard, to-wit, on or about September 1, 1872, collected from said insurance the sum of $7500, and the same should have been credited on said principal note, and should now be credited on said indebtedness as of the time when the same was paid to said trustee.

The exact language of the covenant in the trust deed, about which the dispute arises, is a's follows: “And will and shall keep all buildings (except outhouses) that may, at any time during the continuance hereof, be upon or a part of the said premises insured against loss or damage by fire, in such insurance company or companies as the said party of the second part, or his successor in trust, his heirs or assigns, may direct, for the full insurable value thereof, not to exceed, however, the amount of said indebtedness; and will and shall, with the proper consent of the insurers, assign the policy or policies to the said party of the second part, his successor in trust hereinafter named, his heirs or assigns, upon request therefor, as a further security for the indebtedness aforesaid. ”

The circuit court of Cook county, where the cause was tried, rendered a decree, in favor of Wilmarth, for $14,272.10, on January 16, 1880, under which the property was sold by the master. A writ of error was prosecuted from the Appellate Court of the First District, to_ review the decree, after the time of redemption had expired, and after the purchaser at the sale, or his assignee, had received a master’s deed. Upon the affirmance of the decree by the Appellate Court,- the cause was brought here by further writ of error from this court.

The only specific assignment of error is, that the trial court did not allow to the plaintiff in error a credit, upon the mortgage indebtedness, of the full amount of money, paid to the trustee by the insurance company.

On August 3, 1872, Fergus received from the insurance company a draft for $7500, in payment of the insurance on the property. The draft was payable to the trustee’s order, and was turned over to him. on the same day, on which it was received. On August 13, 1872, the trustee deposited the money in the Scandinavian National Bank of Chicago, and received a certificate of deposit therefor. On December 9, 1872, the bank failed and went into the hands of a receiver. On March 1, 1873, the receiver issued and delivered to the trustee a certificate, certifying, that such trustee was a creditor of the bank to the amount of $7643.83. Subsequently, the receiver paid two dividends to the trustee, one of $1910.96 and one of $1146.58, all of which money was paid out either to Fergus, or for his benefit and upon his account, towards the erection of a new building upon the premises. Upon the trial of the cause the complainant below turned over the receiver’s certificate to Fergus, who accepted the same. Fergus paid the interest upon the whole amount of the mortgage down to December 26, 1877.

After the collection of the insurance money by the trustee, the question arose what he should do with it. He was the agent- of both the mortgagor and the holder of the note. The money took the place of the buildings, destroyed by the fire, and was, in his hands, a part of the security for the debt. The creditor, Wilmarth, desired to have the money credited upon the indebtedness, but Fergus was unwilling to have such application made of it. As the principal was not yet due and no default had been made in the payment of interest, the trustee could not apply the fund to the reduction of the debt without the consent of Fergus.

Fergus wished, that the money should be paid over to him to be used in the construction of a new building upon the lot. It would not have been right for the trustee to have turned over to the mortgagor either the whole amount at once, or different portions of such amount at different times, unless its application to the erection of a new building, and, thereby, a consequent increase in the value of the security, could have been, in some way, made certain. If Fergus had received the insurance money and had appropriated it to some other purpose, neglecting to improve the lot at all, the creditor would have had reason to complain of the trustee. The latter was not unwilling, as the testimony shows, to pay over the $7500 to the mortgagor, whenever he should be offered, in exchange for it, a new insurance policy for the'same amount upon any new structure, that might be placed upon the premises. Fergus himself testifies: “an agreement was made, that I was to have the money, when the roof was on the building. ” He did not commence rebuilding until the latter part of October, 1872, and there is nothing in the testimony to show, that “the roof was on, ” before the bank failed on December 9, 1872.

Under these circumstances, the trustee did not pay the money to the creditor to be applied on the debt, nor to the mortgagor upon a mere promise, that it would be used in rebuilding. He concluded to hold it, until there was a default in the payment of some portion of the indebtedness, or until the new building should have progressed far enough to justify an expenditure of the fund in liquidating the cost of its erection. We can not see, that, by this course, he failed in his duty towards either party. The views,' here expressed, are in harmony with those of the opinion in Gordon v. Ware Savings Bank, 115 Mass. 588.

At no time, during any of these transactions, did Furness, the trustee, have the note or trust deed.in his possession. They were in Massachusetts in the hands of Wilmarth. Furness did not receive the insurance money, as the agent of the holder of the note, authorized to collect the debt secured. His position was that of mere trustee, in a deed of trust, occupying the relation of agent as much to the mortgagor, as to the-beneficiary in the deed. Jones on Mortgages, sec. 1771.

As to the deposit of the money in the Scandinavian National Bank, it was done at the suggestion of Fergus and in compliance with his wishes. He was a friend of Siller, the cashier, and was doing work,.as a.printer, for the bank. He told Furness, that he knew the Scandinavian bank and had had dealings there; and that it paid interest on deposits, and he requested, that the money be placed there. He took' the trustee there and introduced him to the cashier. The bank had a fair standing, and was in good credit, at the time the deposit was made. The money was deposited to the credit of the trustee, as such, and not mingled with his private funds.

In no view of the case, can the appellee, Wilmarth, be charged with this sum of $7500, as a credit upon his mortgage indebtedness. We see no error in the accounting, had before the master in the trial court. The judgment of the Appellate Court is affirmed.

Judgment affirmed.